The 11th Circuit Court of Appeals has reversed a lower court and held that individuals suing to recover for violations under the Drivers Privacy Protection Act do not need to demonstrate actual harm in order to recover monetary damages. In the case, a Florida man sued Fidelity Bank for obtaining the personal information of 565,000 individuals from the State's motor vehicle databases for junk mail purposes. EPIC's brief in the case argued that monetary damages were necessary in order to deter unaccountable data brokers from obtaining personal information from government coffers. (Aug. 26, 2005)

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Case No. 04-13306-BB APPEAL FROM ENTRY OF SUMMARY FINAL JUDGMENT Appeal from the United States District Court for the Southern District of Florida Case No. 03-80593-CIV-HURLEY/LYNCH JAMES KEHOE, on behalf of himself and all others similarly situated, Plaintiff/Appellant, v. FIDELITY FEDERAL BANK AND TRUST Defendant/Appellee. INITIAL BRIEF OF APPELLANT JAMES KEHOE ROGER SLADE PAUL J. GELLER Florida Bar No. 41319 Florida Bar No. 984795 MARC C. PUGLIESE STUART A. DAVIDSON Florida Bar No. 0086169 Florida Bar No. 0084824 PATHMAN LEWIS, LLP LERACH COUGHLIN STOIA Suite 2400, One Biscayne Tower GELLER RUDMAN & 2 South Biscayne Boulevard ROBBINS LLP Miami, Florida 33131 197 South Federal Highway Telephone: (305) 379-2425 Suite 200 Facsimile: (305) 379-2420 Boca Raton, Florida 33432 Telephone: (561) 750-3000 Facsimile: (561) 75-3364 Attorneys for Plaintiff/Appellant James Kehoe STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 04-13306-BB FROM ENTRY OF SUMMARY FINAL JUDGMENT from the United States District Court for the of Florida CIV-HURLEY/LYNCH KEHOE, on behalf of himself and all others similarly situated, Appellant, V. FEDERAL BANK AND TRUST Appellee. INITIAL BRIEF OF APPELLANT JAMES KEHOE SLADE J. GELLER Bar No. 41319 Bar No. 984795 C. PUGLIESE A. DAVIDSON Bar No. 0086169 Bar No. 0084824 LEWIS, LLP COUGHLIN STOIA Biscayne Tower RUDMAN & Boulevard LLP Florida 33131 Highway 2425 2420 Florida 33432 (561) 750-3000 (561) 75-3364 for Plaintiff/Appellant James Kehoe Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB U.S. DISTRICT COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Trial Judge: Daniel T.K. Hurley Attorneys for Plaintiff/Appellant: Roger A. Slade and Marc C. Pugliese of Pathman Lewis, LLP; Paul J. Geller and Stuart A. Davidson of Lerach Coughlin Stoia Geller Rudman & Robbins LLP Plaintiff/Appellant: James Kehoe Defendant/Appellee: Fidelity Federal Bank & Trust Attorneys for Defendant/Appellee: L. Louis Mrachek and Roy Fitzgerald of Page Mrachek Fitzgerald & Rose, P.A. 1 Case No. 04-13306-BB COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CERTIFICATE OF INTERESTED PERSONS AND DISCLOSURE STATEMENT Judge: Daniel T.K. Hurley for Plaintiff/Appellant: Roger A. Slade and Marc C. Pugliese of Pathman LLP; Paul J. Geller and Stuart A. Davidson of Lerach Coughlin Stoia Geller Robbins LLP Appellant: James Kehoe Appellee: Fidelity Federal Bank & Trust for Defendant/Appellee: L. Louis Mrachek and Roy Fitzgerald of Page Fitzgerald & Rose, P.A. 1 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB STATEMENT REGARDING ORAL ARGUMENT Pursuant to 11th Cir. R. 28-1(c), Kehoe respectfully requests that oral argument be heard on this appeal. The principal arguments raised on this appeal involve consideration of core issues relating to whether actual damages must be pled and proven by a plaintiff seeking relief under a federal privacy statute. Routinely, Courts have held that it is not necessary to plead and prove actual damages under Federal Privacy statutes. The issues pending on this appeal are of first impression in the Eleventh Circuit, and concern the application of the Supreme Court’s recent decision in Doe v. Chao to federal privacy statutes other than the specific statute at issue in Chao. A robust discussion of such issues at oral argument will substantially assist the Court in its consideration of this appeal. 2 Case No. 04-13306-BB REGARDING ORAL ARGUMENT R. 28-1(c), Kehoe respectfully requests that oral argument heard on this appeal. The principal arguments raised on this appeal involve of core issues relating to whether actual damages must be pled and a seeking relief under a federal privacy statute. Routinely, Courts that it is not necessary to plead and prove actual damages under Federal statutes. The issues pending on this appeal are of frst impression in the and concern the application of the Supreme Court's recent decision Doe v. Chao to federal privacy statutes other than the specific statute at issue in A robust discussion of such issues at oral argument will substantially assist the its consideration of this appeal. 2 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB TABLE OF CONTENTS PAGE(S) CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT ........................................................ 1 STATEMENT REGARDING ORAL ARGUMENT............................................... 2 TABLE OF CONTENTS .........................................................................................i TABLE OF CITATIONS....................................................................................... iii STATEMENT OF JURISDICTION......................................................................... 3 STATEMENT OF THE ISSUES.............................................................................. 4 STATEMENT OF THE CASE................................................................................. 5 A. Statement of Facts and Procedural History ............................................... 5 THE ORDER OF THE DISTRICT COURT.........................................................12 A. Statement or Standard of Scope of Review.......................................16 SUMMARY OF ARGUMENT .............................................................................16 ARGUMENT.........................................................................................................20 THE ORDER OF THE DISTRICT COURT GRANTING FIDELITY’S RENEWED MOTION FOR SUMMARY FINAL JUDGMENT MUST BE REVERSED........................................................20 I. Liquidated Damage Provisions Are Long-Standing Remedies for Privacy Violations............................................................20 A. Privacy Scholars Recognize the Critical Role of Liquidated Damage Provisions in Privacy Statutes ..........................21 i Case No. 04-13306-BB OF CONTENTS S) OF INTERESTED PERSONS AND DISCLOSURE STATEMENT ... REGARDING ORAL ARGUMENT ... OF CONTENTS ... .. i OF CITATIONS ... . OF JURISDICTION ... OF THE ISSUES ... OF THE CASE ... Statement of Facts and Procedural History ... ORDER OF THE DISTRICT COURT ... of Scope of Review ... OF ARGUMENT ... ARGUMENT ... ORDER OF THE DISTRICT COURT GRANTING FIDELITY'S RENEWED MOTION FOR SUMMARY FINAL MUST BE REVERSED ... Damage Provisions Are Long-Standing Privacy Violations ... Scholars Recognize the Critical Role of Damage Provisions in Privacy Statutes ... i Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB B. Liquidated Damage Provisions Are Routinely Included in Statutory Privacy Laws ..................................................22 1. The Video Privacy Protection Act ........................................... 22 2. The Electronic Communications Privacy Act ......................... 23 3. The Cable Communications Policy Act................................... 24 4. The Telephone Consumer Protection Act................................ 24 5. The Right To Financial Privacy Act ........................................ 25 II. The District Court Misinterpreted the DPPA....................................25 A. The Supreme Court’s Decision in Chao Supports Appellant’s Position ........................................................................... 31 B. The District Court’s Decision Ignores the DPPA’s Legislative History ............................................................................. 38 III. The District Court Erred When It Entered Summary Final Judgment for Defendant Without Considering Plaintiff’s Prayer for Injunctive Relief............................................................................................ 39 CONCLUSION......................................................................................................45 CERTIFICATE OF COMPLIANCE.....................................................................47 CERTIFICATE OF SERVICE ..............................................................................48 ii Case No. 04-13306-BB Damage Provisions Are Routinely in Statutory Privacy Laws ... Privacy Protection Act ... Communications Privacy Act ... Policy Act ... Consumer Protection Act ... To Financial Privacy Act ... Court Misinterpreted the DPPA ... Court's Decision in Chao Supports Appellant's Position ... Court's Decision Ignores the DPPA's History ... Court Erred When It Entered Summary Final Judgment Without Considering Plaintiff's Prayer for Relief ... CONCLUSION ... OF COMPLIANCE ... OF SERVICE ... ii Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB TABLE OF CITATIONS CASES PAGE(S) Acme Painting Ink Co. v. Menard, Inc., 891 F. Supp. 1289 (E.D. Wis. 1995) ......................................................... 44 Alabama v. Bozeman, 533 U.S. 146, 121 S. Ct. 2079, 150 L. Ed. 2d 188 (2001) ........................ 28 Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 124 S. Ct. 983, 157 L. Ed. 2d 967 (2004) .......................... 29 Allapattah Servs. v. Exxon Corp., 333 F.3d 1248 (11th Cir. 2003) ................................................................. 27 Arnold v. United Artists Theater Circuit, 158 F.R.D. 439 (N.D. Cal. 1994) .............................................................. 44 Brooks v. Auto Data Direct, et al., No. 03-61063-CIV-MARTINEZ (S.D. Fla.) ............................................... 9 Buchanan v. Consol. Stores Corp., 217 F.R.D. 178 (D. Md. 2003) .................................................................. 43 Carter v. Galloway, 352 F.3d 1346 (11th Cir. 2003) ................................................................. 16 Cipollone v. Liggett Group, Inc. iii Case No. 04-13306-BB OF CITATIONS S) Ink Co. v. Menard, Inc., (E.D. Wis. 1995) v. Bozeman, 146, 121 S. Ct. 2079, 150 L. Ed. 2d 188 (2001) Dep't of Envtl. Conservation v. EPA, 461, 124 S. Ct. 983, 157 L. Ed. 2d 967 (2004) Servs. v. Exxon Corp., 1248 (11th Cir. 2003) v. United Artists Theater Circuit, 439 (N.D. Cal. 1994) v. Auto Data Direct, et al., 03-61063-CIV-MARTINEZ (S.D. Fla.) ... v. Consol. Stores Corp., D. 178 (D. Md. 2003) v. Galloway, 1346 (11th Cir. 2003) ... v. Liggett Group, Inc. iii Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB 505 U.S. 504, 112 s. Ct. 2608, 120 L. Ed. 407 (1992) ................................ 9 City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 102 S. Ct. 1070, 71 L. Ed. 2d 152 (1983) .......................... 42 Collier v. Dickenson, et al., No. 04-21351-CIV-GRAHAM (S.D. Fla.) .................................................. 9 Covad Communs. Co. v. BellSouth Corp., 314 F.3d 1282 (11th Cir. 2002) ............................................................41, 43 Cowan v. Codelia, 2001 WL 856606, 8 (S.D.N.Y. 2001) ........................................................26 Dirkes v. Borough of Runnemede, 936 F. Supp. 235 (D.N.J. 1996) ................................................................. 22 Doe v. Chao, 306 F.3d 170 (4th Cir. 2002) ......................................................................13 *Doe v. Chao, 540 U.S. 614, 124 S. Ct. 1204, 157 L. Ed. 2d 1122 (2004) ............... passim Fitzpatrick v. IRS, 665 F.2d 327 (11th Cir. 1982) ..............................................................13, 32 Forman v. Data Transfer, Inc., 164 F.R.D. 400 (E.D. Pa. 1995) ..................................................................25 iv Case No. 04-13306-BB 504, 112 s. Ct. 2608, 120 L. Ed. 407 (1992) Mesquite v. Aladdin 's Castle, Inc., S. 283, 102 S. Ct. 1070, 71 L. Ed. 2d 152 (1983) v. Dickenson, et al., 04-21351-CIV-GRAHAM (S.D. Fla.) ... Co. v. BellSouth Corp., 1282 (11th Cir. 2002) 4411,,43 856606, 8 (S.D.N.Y. 2001) v. Borough ofRunnemede, 235 (D.N.J. 1996) ... Chao, (4th Cir. 2002) ... v. Chao, 124 S. Ct. 1204, 157 L. Ed. 2d 1122 (2004) .. v. IRS, (11th Cir. 1982) 13,32 v. Data Transfer, Inc., 400 (E.D. Pa. 1995) ... iv Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 258 U.S. 167, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) ................. 41-42, 43 Garcia v. United States, 469 U.S. 70, 105 S. Ct. 479, 83 L. Ed. 2d 472 (1984) .............................. 38 Gade v. Nat’l Solid Wastes Mgmt. Assn’n, 505 U.S. 88, 112 S. Ct. 2374, 120 L. Ed. 2d 73 (1992) .............................. 8 Halperin v. Kissinger, 606 F.2d 1192 (D.C. Cir. 1979) ................................................................. 24 Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985) ............................ 9 Indiana H. B. R. Co. v. Am. Cyanamid Co., 860 F.2d 1441 (7th Cir. 1988) ................................................................... 44 In re Garndenhire, 209 F.3d 1145 (9th Cir. 2000)............................................................... 29-30 In re Parffrey, 264 B.R. 409 (Bankr. S.D. Tex. 2001) ...................................................... 30 In re Paschen, 296 F.3d 1203 (11th Cir. 2002) ................................................................. 27 Johnson v. Dep’t of Treasury, 700 F.2d 971 (5th Cir. 1983) ..................................................................... 32 v Case No. 04-13306-BB of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., S. 167, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) v. United States, S. 70, 105 S. Ct. 479, 83 L. Ed. 2d 472 (1984) Nat'l Solid Wastes Mgmt. Assn 'n, 112 S. Ct. 2374, 120 L. Ed. 2d 73 (1992) v. Kissinger, (D.C. Cir. 1979) ... County v. Automated Med. Labs., Inc., S. 707, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985) H. B. R. Co. v. Am. Cyanamid Co., (7th Cir. 1988) Garndenhire, 1145 (9th Cir. 2000) ... Parfrey, R. 409 (Bankr. S.D. Tex. 2001) ... Paschen, 1203 (11th Cir. 2002) ... Dep't of Treasury, (5th Cir. 1983) v Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S. Ct. 956, 140 L. Ed. 2d 62 (1998) ........................ 28-29 Luparello v. Garden City, 290 F. Supp 2d 341 (E.D.N.Y. 2003) .........................................................26 Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass. 2000) ................................................................. 44 Margan v. Niles, 250 F. Supp. 63 (N.D.N.Y. 2003) ...............................................................26 Metrovision of Livonia, Inc. v. Wood, 864 F. Supp. 675 (E.D. Mich. 1994) ......................................................... 24 National Fire Ins. Co. of Hartford v. Fortune Constr. Co., 320 F.3d 1260 (11th Cir. 2003) ................................................................. 16 Orekoya v. Mooney, 330 F.3d 1 (1st Cir. 2003) .......................................................................... 32 Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 52 P.U.R. 4th 169, 1035 S. Ct. 1713, 75 L.Ed. 2d 752 (1983) ............................................................................... 9 Russell v. Choicepoint, et al., No. 03-1994 (E.D. La.) ................................................................................ 9 Senator Linie Gmbh & Co.Kg v. Sunway Line, Inc., vi Case No. 04-13306-BB v. Milberg Weiss Bershad Hynes & Lerach, 26, 118 S. Ct. 956, 140 L. Ed. 2d 62 (1998) v. Garden City, 2d 341 (E.D.N.Y. 2003) ... v. Sufolk County, 16 (D. Mass. 2000) v. Niles, 63 (N.D.N.Y. 2003) ... of Livonia, Inc. v. Wood, (E.D. Mich. 1994) Fire Ins. Co. of Hartford v. Fortune Constr. Co., 1260 (11th Cir. 2003) ... Mooney, 1 (1st Cir. 2003) ... Pacifc Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, S. 190, 52 P.U.R. 4th 169, 1035 S. Ct. 1713, Ed. 2d 752 (1983) ... et al., 1994 (E.D. La.) ... Gmbh & Co.Kg v. Sunway Line, Inc., vi Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB 291 F.3d 145 (2d Cir. 2002) .......................................................................26 Shenago Inc. v. Apfel, 307 F.3d 174 (3rd Cir. 2002) ..................................................................... 29 Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958) ................................ 36 Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th Cir. 2000) ....................................................................26 Spurlock v. Postmaster Gen., 19 Fed. Appx. 338 (6th Cir. 2001) .............................................................30 Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, P.A., Case No. 03-21759-CIV-MARTINEZ (S.D. Fla.) ......................................9 TRW, Inc. v. Andrews, 534 U.S. 19, 122 S. Ct. 441, 151 L. Ed. 2d 339 (2001) ............................29 Tyler v. Judges of the Court of Registration, 179 U.S. 405, 21 S. Ct. 206, 45 L. Ed. 252 (1900) ................................... 36 United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968) .............................. 42 United States v. Menasche, 348 U.S. 528, 75 S. Ct. 513, 99 L. Ed. 615 (1955) ................................... 37 United States v. Ron Pair Enters., Inc., vii Case No. 04-13306-BB 145 (2d Cir. 2002) v. Apfl, 174 (3rd Cir. 2002) ... States, S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958) Concepts, Inc., 928 (11th Cir. 2000) v. Postmaster Gen., 338 (6th Cir. 2001) Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, P.A., 21759-CIV-MARTINEZ (S.D. Fla.) ... Andrews, 19, 122 S. Ct. 441, 151 L. Ed. 2d 339 Judges of the Court of Registration, 21 S. Ct. 206, 45 L. Ed. 252 (1900) States Concentrated Phosphate Export Ass'n, S. 199, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968) States Menasche, S. 528, 75 S. Ct. 513, 99 L. Ed. 615 (1955) States Ron Pair Enters., Inc., vii Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB 489 U.S. 235, 109 S. Ct. 1026, 103 L. Ed. 2d. 2d 290 (1989) .............27, 30 United States v. W.T. Grant Co., 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953) ................................. 42 Warner v. Am. Cablevision of Kansas City, Inc., 699 F. Supp. 851 (D. Kan. 1988) .............................................................. 24 Waters v. Thornburgh, 888 F.2d 870 (D.C. Cir. 1989) ................................................................... 32 Wilborn v. Dep’t of Health & Human Servs., 49 F.3d 597 (9th Cir. 1995) ....................................................................... 32 viii Case No. 04-13306-BB S. 235, 109 S. Ct. 1026, 103 L. Ed. 2d. 2d 290 (1989) 27,30 W T Grant Co., S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953) Am. Cablevision of Kansas City, Inc., 851 (D. Kan. 1988) (D.C. Cir. 1989) ... v. Dep't of Health & Human Servs., (9th Cir. 1995) viii Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB STATUTES, RULES AND REGULATIONS U.S. Const. art. VI, cl. 2...........................................................................................8 5 U.S.C. §552(a) ....................................................................................................... 32 §552(a)(g)(4)(A)................................................................................... 18, 34 12 U.S.C. §3417(a)(1) ................................................................................................ 25 18 U.S.C. §2520 .........................................................................................................14 §2520(c)(1)(A) ........................................................................................... 23 §2520(c)(1)(B) ........................................................................................... 23 §2520(c)(2)(B) ........................................................................................... 23 §2707(c) ......................................................................................................23 §2710 ..........................................................................................................22 §2710(c)(2)(A).............................................................................................22 §2721 ..................................................................................................... 5, 39 §2721(a) ....................................................................................................... 7 §2721(b) ..................................................................................................... 28 §2724 .........................................................................................................3, 8 ix Case No. 04-13306-BB RULES AND REGULATIONS art. VI, cl. 2 ... ... 4)(A) ... 18,34 1) 1)(A) ... 1)(B) ... 2)(B) ... ... 2)(A) ... 5,39 ... ... ... ix Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB *§2724(a).....................................................................................8, 26, 27, 28 §2724(b) ....................................................................................................... 40 §2724(b)(1) ............................................................................................. 22,37 §2724(b)(3) ..................................................................................................28 §2725(3).........................................................................................................7 §2725(4).........................................................................................................7 §2707(c) ..................................................................................................... 23 26 U.S.C. §6110 ...........................................................................................................36 §6110(j)(2)(A) ..................................................................................... 36-37 28 U.S.C. §1291 ........................................................................................................... 3 § 1331 .............................................................................................................3 29 U. S. C. §2601 ......................................................................................................... 30 42 U.S.C. §6901 ......................................................................................................... 44 x Case No. 04-13306-BB a) ... 8,26,27,28 ... 1) ... 3) ... 3) ... 4) ... ... S.C. ... 61100)(2)(A) S.C. 1291 1331 ... S.C. Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB 47 U.S.C. §227(b)(3) ....................................................................................................25 §551(f)(2)(A) ............................................................................................. 24 Fed. R. Civ. P. Rule 23(b)(2) ...................................................................................19, 40, 43 11th Cir. Rule 28-1(c) ..................................................................................... ............2 Florida Statutes §119.07 .........................................................................................................8 § 119.07(3)(a)(12) .......................................................................................13 2004 Fla. Sess. Law Serv. 2004-62..........................................................................8 Fla. H.B. No. 1737 (2004) ......................................................................................8 OTHER AUTHORITIES: 139 Cong. Rec. S15745 (daily ed. Nov. 13, 1993) (Statement of Sen. Boxer) .......7 Frank P. Anderano, The Evolution of Federal Computer Crime Policy, 27 Am J. Crim. L. 81 (1999) ................................................22 Mark E. Budnitz, Privacy Protection for Consumer xi Case No. 04-13306-BB 3) ... 2)(A) P. b)(2) 1 1 th Cir. 1(c) ... Statutes 119.07 119.07(Sess. Serv. 2004-62 ... B. No. 1737 (2004) AUTHORITIES: 515745 (daily ed. Nov. 13, 1993) (Statement of Sen. Boxer) ... The Evolution of Federal Computer Policy, 27 Am J. Crim. L. 81 (1999) ... E. Budnitz, Privacy Protection for Consumer xi Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Transactions in Electronic Commerce: Why Self-Regulation is Inadequate, 49 S.C.L. Rev. 847 (1998) ..................................................21 Frederick Lodge, Damages Under the Privacy Act of 1974: Compensation and Deterrence, 52 Fordham L. Rev. 611 (1984) ..................................... 20 Samuel Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).........................................................................20 Jay Weiser, Measure of Damages for Violation of Property Rules: Breach of Confidentiality, 9 U. Chi. L. Sch. Roundtable 75 (2002) ...........21 xii Case No. 04-13306-BB in Electronic Commerce: Why Self-Regulation 49 S.C.L. Rev. 847 (1998) ... Lodge, Damages Under the Privacy Act of 1974: Compensation Deterrence, 52 Fordham L. Rev. 611 (1984) ... and Louis D. Brandeis, The Right to Privacy, L. Rev. 193 (1890) ... Measure of Damages for Volation of Property Rules: of Confidentiality, 9 U. Chi. L. Sch. Roundtable 75 (2002) ... xii Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB STATEMENT OF JURISDICTION The District Court had jurisdiction over the subject matter of this litigation pursuant to 28 U.S.C. §1331 because this action was brought under the Federal Driver’s Privacy Protection Act, 18 U.S.C. §2724. This Court has jurisdiction over this direct appeal arising from litigation commenced in the United States District Court, Southern District of Florida by Appellant James Kehoe (“Kehoe”) against Fidelity Federal Bank & Trust (“Fidelity”), in which the District Court (Hurley, J.) entered Summary Final Judgment against Kehoe dismissing his claims. 28 U.S.C. §1291. 3 Case No. 04-13306-BB OF JURISDICTION Court had jurisdiction over the subject matter of this litigation to 28 U.S.C. action was brought under the Federal Driver's Privacy Protection Act, 18 U.S.C. §2724. This Court has jurisdiction over direct appeal arising from litigation commenced in the United States District Southern District of Florida by Appellant James Kehoe ("Kehoe") against Federal Bank & Trust ("Fidelity"), in which the District Court (Hurley, J.) Final Judgment against Kehoe dismissing his claims. S.C. 3 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB STATEMENT OF THE ISSUES 1. Whether a plaintiff who files a lawsuit under the Federal Driver’s Privacy Protection Act, which provides for a liquidated damages remedy for those aggrieved by a violation of the Act, is required to prove that he suffered actual damages. 2. Whether the District Court erred when it entered Summary Final Judgment for Fidelity without considering Kehoe’s prayer for injunctive relief. 4 Case No. 04-13306-BB OF THE ISSUES a plaintiff who files a lawsuit under the Federal Driver's Privacy Act, which provides for a liquidated damages remedy for those a of the Act, is required to prove that he suffered actual the Court erred when it entered Summary Final Judgment for without considering Kehoe's prayer for injunctive relief. 4 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB STATEMENT OF THE CASE A. Statement of Facts and Procedural History In 1993, Congress enacted the Federal Driver’s Privacy Protection Act, 18 U.S.C. §2721, et. seq. (“DPPA”), in response to growing concerns regarding the actual and potential misuse of personal information contained in the drivers license records of State motor vehicle bureaus. (Complaint at 2) [DE#1]. Prior to the DPPA’s enactment, individuals with little or no justifiable purpose could obtain the home address of any licensed driver simply by name or by providing the tag/license plate number to a local motor vehicle bureau. Congress enacted the DPPA to prevent the potential misuse of this information by individuals who did not have a legitimate need for it. Id. at 3. Senator Barbara Boxer (D-CA), during a November 16, 1993 Senate Committee hearing, described the reasons that the DPPA was enacted by Congress: Mr. President, today I join the Senator from Virginia [Mr. Warner] and 26 other cosponsors, to offer an amendment to protect the privacy of all Americans. In California, actress Rebecca Schaeffer was brutally murdered in the doorway of her Los Angeles apartment by a man who had obtained her home address from my State’s DMV. In Iowa, a gang of teenagers copied down the license plate numbers of expensive cars, obtained the home addresses of the owners from the Department of Transportation, and then robbed them at night. 5 Case No. 04-13306-BB OF THE CASE of Facts and Procedural History 1993, Congress enacted the Federal Driver's Privacy Protection Act, 18 272 1, ("DPPA"), in response concerns regarding the actual misuse of personal information contained in the drivers license records State motor vehicle bureaus. at 2) [DE#1]. Prior to the DPPA's individuals with little or no justifiable purpose could obtain the home licensed driver simply by name or by providing the tag/license plate a local motor vehicle bureau. Congress enacted the DPPA to prevent the misuse of this information by individuals who did not have a legitimate need Id. at 3. during a November 16, 1993 Senate Committee the reasons that the DPPA was enacted by Congress: President, today I join the Senator from Virginia [Mr. and 26 other cosponsors, to offer an amendment to the privacy of all Americans. California, actress Rebecca Schaeffer was brutally the doorway of her Los Angeles apartment by a man had obtained her home address from my State's DMV. a gang of teenagers copied down the license plate of expensive cars, obtained the home addresses of the the Department of Transportation, and then robbed 5 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB In Tempe, AZ, a woman was murdered by a man who had obtained her home address from that State’s DMV. And, in California, a 31-year-old man copied down the license plate numbers of five women in their early twenties, obtained their home address from the DMV and then sent them threatening letters at home. I want to briefly read from two of those letters. I’m lonely and so I thought of you. I’ll give you one week to respond or I will come looking for you. Another one read: I looked for you though all I knew about you was your license plate. Now I know more and yet nothing. I know you’re a Libra, but I don’t know what it’s like to smell your hair while I’m kissing your neck and holding you in my arms. When they apprehended him, they found in his possession a book entitled “You Can Find Anyone” which spelled out how to do just that using someone’s license plate. In 34 States, someone can walk into a State Motor Vehicle Department with your license plate number and a few dollars and walk out with your name and home address. Think about this. You might have an unlisted phone number and address. But, someone can find your name or see your car, go to the DMV and obtain the very personal information that you may have taken painful steps to restrict. Mr. President, the American people think that this is wrong. In a recent Lou Harris survey, 80 percent of the people were uncomfortable with one person obtaining this type of information about another. Can we afford to wait until every State has their own tragedy? That is not the way to legislate. Our Representatives are 6 Case No. 04-13306-BB AZ, a woman was murdered by a man who had home address from that State's DMV. in California, a 31-year-old man copied down the plate numbers of five women in their early twenties, their home address from the DMV and then sent them letters at home. I want to briefy read from two of I'm lonely and so I thought of you. I'll give you one week or I will come looking for you. one read: looked for you though all I knew about you was your Now I know more and yet nothing. I know you 're but I don't know what it's like to smell your while I'm kissing your neck and holding you in my they found in his possession a entitled "You Can Find Anyone" which spelled out how to using someone's license plate. into a State Motor Vehicle with your license plate number and a few dollars and out with your name and home address. Think about this. might have an unlisted phone number and address. But, your name or see your car, go to the DMV and the very personal information that you may have taken steps to restrict. President, the people think that this is wrong. a recent Lou Harris survey, 80 percent of the people were with one person obtaining this type of information we afford to wait until every State has their own That is not the way to legislate. Our Representatives are 6 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB elected to lead, to think ahead and-at every turn-to find ways to protect the people they represent. In many States, police officers, public figures and other victims of these privacy abuses have been allowed to request that the DMV keep their home addresses confidential. Of course, these people deserve privacy and protection. But, so do all of our people1. 139 CONG. REC. S15745-01, S15762 (daily ed. Nov. 13, 1993) (Statement of Sen. Boxer). Accordingly, Congress enacted the DPPA, which provides, in relevant part, as follows: (a) In general.--A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity: (1) personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; or (2) highly restricted personal information, as defined in 18 U.S.C. 2725(4), about any individual obtained by the department in connection with a motor vehicle record, without the express consent of the person to whom such information applies …. 18 U.S.C. §2721(a). *** 1 Upon information and belief, the driver’s license information of all Federal judges in Florida was blocked on the database of the Florida Department of Highway Safety and Motor Vehicles by the United States’ Marshall’s Service more than ten years ago. 7 Case No. 04-13306-BB lead, to think ahead and-at every turn-to find ways to they represent. In many States, police offcers, fgures and other victims of these privacy abuses have been to request that the DMV keep their home addresses Of course, these people deserve privacy and But, so do all of our people'. S 15745-01, S 15762 ed. Nov. 13, 1993) (Statement of Sen. Congress enacted the DPPA, which provides, in relevant part, general.--A State department of motor vehicles, employee, or contractor thereof shall not disclose or otherwise make available to any entity: personal information, as defined in about any individual obtained by the connection with a motor vehicle record, in subsection (b) of this section; or restricted personal information, as defned in obtained by the connection with a motor vehicle record, the express consent of the person to whom such applies ... 2721(a). ' information and belief, the driver's license information of all Federal Florida was blocked on the database of the Florida Department of Highway Motor Vehicles by the United States' Marshall's Service more than ten 7 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB A person who knowingly obtains, discloses or uses personal information from a motor vehicle record, for purpose not permitted under this Chapter shall be liable to the individual to whom the information pertains, who may bring a civil action in the United States District Court. 18 U.S.C. §2724(a). After passage of the DPPA, 49 out of 50 states followed the DPPA by restricting the dissemination of driver’s license information to the public. Florida – through the Florida Department of Highway Safety and Motor Vehicles (“FDHSMV”) – is the only state in the Union that did not do so, until it enacted an amendment to its public records statute on May 13, 2004. See §119.07, Florida Statutes (2004); 2004 Fla. Sess. Law Serv. 2004-62 (West). This amendment will take effect in October 2004. See Fla. H.B. No. 1737 (2004). In fact, until approximately April 22, 2004, Florida continued to disseminate this information in violation of federal law to anyone who requested it even though it was well aware that its conduct was violative of the 2 Federal court litigation spawned by the State of Florida’s 2 Kehoe has taken the position throughout this lawsuit that the Supremacy Clause of the United States Constitution mandated compliance with the DPPA by the State of Florida – regardless of whether Florida passed specific legislation on this issue. Article VI of the United States Constitution provides that federal law “shall be the Supreme Law of the Land; . . . anything in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2. As a result, “any state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield.” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 108, 112 S. Ct. 2374, 2388, 120 L. Ed. 2d 73 (1992). The doctrine of 8 Case No. 04-13306-BB person who knowingly obtains, discloses or uses personal from a motor vehicle record, for purpose not under this Chapter shall be liable to the individual to the information pertains, who may bring a civil action in States District Court. a). passage of the DPPA, 49 out of 50 states followed the DPPA by the dissemination of driver's license information to the public. Florida -Department of Highway Safety and Motor Vehicles ("FDHSMV") -is the only state in the Union that did not do so, until it enacted an amendment to its records statute on May 13, 2004. See § 119.07, Florida Statutes (2004); 2004 Serv. 2004-62 (West). This amendment will take effect in October See Fla. H.B. No. 1737 (2004). In fact, until approximately April 22, 2004, continued to disseminate this information in violation of federal law to anyone it even though it was well aware that its conduct was violative of the DPPA 2 and was aware of Federal court litigation spawned by the State of Florida's has taken the position throughout this lawsuit that the Supremacy States Constitution mandated compliance with the DPPA by the Florida -regardless of whether Florida passed specific legislation on this VI of the United States Constitution provides that federal law "shall be the Land; ... anything in the Constitution or Laws of any State to notwithstanding." U.S. CoNST. art. VI, cl. 2. As a result, "any state law, clearly within a State's acknowledged power, which interferes with or is to federal law, must yield." Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 2388, Ed. 2d 73 (1992). The doctrine of 8 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB conduct.3 (Deposition Transcript of Dennis J. Casey (“Casey Dep.”), at 73-77) [DE#74]. This lawsuit was filed as a putative class action by Kehoe against Fidelity on July 1, 2003. (Complaint at 1) [DE#1]. Fidelity is a federally chartered banking institution which maintains branches located in the State of Florida, particularly in Broward, Palm Beach, St. Lucie and Martin Counties. (Fidelity’s Statement of Material Facts Submitted in Support of its Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment, ¶ 1) [DE#11]. In or about 2000, Fidelity began to solicit Florida drivers to refinance their automobile loans with Fidelity. (Id. ¶ 2). However, in order to determine who to solicit, Fidelity made requests on a monthly basis to receive the names and addresses of Florida vehicle owners or title registrants to the FDHSMV. Id. Fidelity sought the individual names and addresses of Florida drivers in three counties who had purchased automobiles within the preceding month. preemption, which is based on the Supremacy Clause of the United States Constitution, provides that a state law is invalid to the extent that it conflicts with federal legislation. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 2618, 120 L. Ed. 2d 407 (1992); Hillsborough County v. Automated Medical Labs., Inc., 471 U.S. 707, 713, 105 S. Ct. 2371, 2375, 85 L. Ed. 2d 714 (1985); Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 204, 52 P.U.R. 4th 169, 1035 S. Ct. 1713, 1722, 75 L. Ed. 2d 752 (1983). 3 Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, P.A., et al., Case No. 03-21759-CIV-MARTINEZ (S.D. Fla.); Brooks v. Auto Data Direct, et al., Case No. 03-61063-CIV-MARTINEZ (S.D. Fla.) (currently captioned Fresco v. Automotive Directions, et al.); Collier v. Dickenson, et al., Case No. 04-21351-CIVGRAHAM (S.D. Fla.)[this lawsuit was brought against FDHSMV]; Russell v. 9 Case No. 04-13306-BB conduct.' Transcript of Dennis J. Casey ("Casey Dep."), at 73-77) 74]. was fled as a putative class action by Kehoe against Fidelity on 1, 2003. at 1) [DE#1]. Fidelity is a federally chartered banking which maintains branches located in the State of Florida, particularly in Palm Beach, St. Lucie and Martin Counties. Fidelity's Statement of Facts Submitted in Support of its Motion to Dismiss, or, in the Alternative, for Summary Judgment, ¶ 1) [DE#11]. In or about 2000, Fidelity began to Florida drivers to refnance their automobile loans with Fidelity. ¶ 2). in order to determine who to solicit, Fidelity made requests on a monthly vehicle owners or title registrants Id. Fidelity sought the individual names and addresses of Florida three counties who had purchased automobiles within the preceding month. which is based on the Supremacy Clause of the United States provides that a state law is invalid to the extent that it conficts with legislation. Cipollone v. Liggett Group, Inc., 505 U. S. 504, 516, 112 S. Ct. 120 L. Ed. 2d 407 (1992); Hillsborough County v. Automated Medical Inc., 471 713, Ct. 2375, Ed. 2d 714 (1985); Pacifc Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm 'n, 461 U. S. R. 4th 1035 S. Ct. 1713, 1722, 75 L. Ed. 2d 752 (1983). Johnstone, King & Stevens, P.A., CIV-MARTINEZ (S.D. Fla.); Brooks v. Auto Data Direct, MARTINEZ (S.D. Fla.) (currently captioned Fresco v. Directions, et al.); Collier v. Dickenson, et al., Case No. 04-21351-CIVGRAHAM (S.D. Fla.)[this lawsuit was brought against FDHSMV]; Russell v. 9 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Id.. The FDHSMV transmitted the information that Fidelity requested to a company called The Bureau, Inc. (“The Bureau”) which was an entity engaged by Fidelity to prepare mass mailings of Fidelity advertisements/solicitations of automobile loans to the Florida drivers whose names were on the list. The information was transmitted by the FHDMSV electronically (i.e., over the internet) to The Bureau. Kehoe’s personal information was included among the information transmitted by FHDMSV to The Bureau. Kehoe’s information was transmitted to Fidelity (or its agent, The Bureau) by the FDHSMV on January 17, 2003. (Deposition of David Perryman (“Perryman Dep.”), at 57-58) [DE#86]; (Plaintiff’s Statement of Material Facts Submitted in Opposition to Fidelity’s Supplemented Statement of Material Fact, ¶ 14) [DE#89]. Sometime well after the FDHSMV disseminated Kehoe’s information to Fidelity, Kehoe accessed the FDHSMV web site (which had just then been modified to perform this function) and blocked his information from being released to anyone else. (Declaration of James Kehoe (“Kehoe Decl.”), ¶ 3) [DE#86]; (Deposition of Becky Scott (“Scott Dep.”), at 8-10) [DE#86] (recognizing that the website block did not become available until after Fidelity received Kehoe’s DPPA protected information). Kehoe’s Complaint asserted one count for liability under the DPPA and sought statutory liquidated damages in the amount of $2,500 as provided for by the DPPA Choicepoint, et al., Case No. 03-1994 (E.D. La.). 10 Case No. 04-13306-BB The FDHSMV transmitted the information that Fidelity requested to a company Bureau, Inc. ("The Bureau") which was an entity engaged by Fidelity to Fidelity advertisements/solicitations of automobile loans to drivers whose names were on the list. The information was transmitted by electronically (i.e., over the internet) to The Bureau. Kehoe's personal was included among the information transmitted by FHDMSV to The Kehoe's information was transmitted to Fidelity (or its agent, The Bureau) by on January 17, 2003. of David Perryman ("Perryman Dep."), at 57-58) 86]; (Plaintiff's Statement of Material Facts Submitted in to Fidelity's Supplemented Statement of Material Fact, ¶ 14) [DE#89]. well after the FDHSMV disseminated Kehoe's information to Kehoe accessed the FDHSMV web site (which had just then been modifed this function) and blocked his information from being released to anyone of James Kehoe ("Kehoe Decl."), ¶ 3) [DE#86]; (Deposition of Scott ("Scott Dep."), at 8-10) [DE#86] (recognizing that the website block did become available until afer Fidelity received Kehoe's DPPA protected Kehoe's Complaint asserted one count for liability under the DPPA and sought liquidated damages in the amount of $2,500 as provided for by the DPPA et al., Case No. 03-1994 (E.D. La.). 10 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB based upon the fact that his personal information had been improperly obtained by Fidelity in connection with its marketing/advertising campaign. (Complaint at 1, 5, 9) [DE#1]. Kehoe also sought equitable relief in the form of an order requiring Fidelity to destroy any personal information illegally obtained frommotor vehicle records, and for “such other relief as the Court deems appropriate.” Id. at 9. Kehoe’s Complaint also sought to certify this action as a class action and defined the class as: Each and every individual in the State of Florida whose name, address, driver identification number, race, date of birth, sex and/or social security number are contained in motor vehicle records obtained by the Defendant from the State of Florida’s Department of Highway Safety and Motor Vehicles, without the express consent of such individuals, from June 1, 2000, through the date of judgment herein (the “Class”). Id. at 6-7. Fidelity acknowledged at deposition that, after this lawsuit was filed, it discontinued its practice of obtaining DPPA protected information from the FHDMSV as a result of the filing of the Complaint in this action. (Casey Dep. at 73-77) [DE#74]. On or about August 22, 2003, Fidelity filed a Motion to Dismiss Kehoe’s complaint. [DE#9]. The basis for the Motion to Dismiss was substantially the same grounds upon which Fidelity later based its Renewed Motion for Summary Final Judgment that is the subject of this appeal. Id. The District Court denied Fidelity’s Motion to Dismiss, [DE#50], and allowed Plaintiff to take discovery from Fidelity and 11 Case No. 04-13306-BB fact that his personal information had been improperly obtained by in connection with its marketing/advertising campaign. (Complaint at 1, 5, 9) 1 ]. Kehoe also sought equitable relief in the form of an order requiring Fidelity illegally obtained from motor vehicle records, and "such other relief as the Court deems appropriate." Id. at 9. Kehoe's Complaint certify this action as a class action and defned the class as: every individual in the State of Florida whose name, driver identifcation number, race, date of birth, sex and/or security number are contained in motor vehicle records from the State of Florida's Department Highway Safety and Motor Vehicles, without the express from June 1, 2000, through the date of herein (the "Class"). at 6-7. acknowledged at deposition that, after this lawsuit was fled, it practice of obtaining DPPA protected information from the FHDMSV result of the filing of the Complaint in this action. Dep. at 73-77) 74]. or about August 22, 2003, Fidelity filed a Motion to Dismiss Kehoe's 9]. The basis for the Motion to Dismiss was substantially the same upon which Fidelity later based its Renewed Motion for Summary Final is the subject of this appeal. Id. The District Court denied Fidelity's to Dismiss, [DE#50], and allowed Plaintiff to take discovery from Fidelity and 11 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB other non-parties. [DE#45]. On October 30, 2004, Kehoe filed a Motion for Class Certification. [DE#26]. That motion was assigned by Judge Hurley to United States Magistrate Judge Frank J. Lynch for resolution. [DE# 27]. Several days before the Motion for Class Certification was scheduled to be heard, Fidelity filed a Motion to Defer Ruling on Class Certification. [DE#69]. Before Kehoe responded to the motion, the District Court entered an Order deferring the hearing and any ruling on class certification pending the outcome of the pending Renewed Motion for Summary Judgment. [DE#81]. In the interim, the United States Supreme Court issued its opinion in Doe v. Chao, 540 U.S. 614, 124 S. Ct. 1204, 157 L. Ed. 2d 1122 (2004). On June 14, 2004, the District Court issued its Order Granting Defendant’s Renewed Motion for Summary Final Judgment (the “Order” or “Opinion”) in this case based, in large part, on the Supreme Court’s decision in Chao. (Order at 6-8, 11) [DE#107]. THE ORDER OF THE DISTRICT COURT In its Opinion, the District Court recognized that the DPPA prohibits individuals and/or businesses from knowingly obtaining, disclosing or using personal information obtained from FDHSMV for a purpose not permitted under the DPPA. (Order at 4-5). The District Court also recognized that the statute created liability on behalf of the individual to whom the information pertains who is permitted to bring a 12 Case No. 04-13306-BB parties. 45]. 30, 2004, Kehoe filed a Motion for Class Certifcation. 26]. was assigned Judge to United States Magistrate Judge Frank J. for resolution. 27]. Several days before the Motion for Class was scheduled to be heard, Fidelity fled a Motion to Defer Ruling on 69]. Before Kehoe responded to the motion, the District entered an Order deferring the hearing and any ruling on class certifcation the outcome of the pending Renewed Motion for Summary Judgment. 81]. the interim, the United States Supreme Court issued its opinion in Doe v. S. 614, 124 S. Ct. 1204, 157 L. Ed. 2d 1122 (2004). On June 14, 2004, District Court issued its Order Granting Defendant's Renewed Motion for Judgment (the "Order" or "Opinion") in this case based, in large part, Court's decision in Chao. 6-8, 11) [DE#107]. ORDER OF THE DISTRICT COURT its Opinion, the District Court recognized that the DPPA prohibits and/or businesses from knowingly obtaining, disclosing or using personal obtained from FDHSMV for a purpose not permitted under the DPPA. 5). The District Court also recognized that the statute created liability on the individual to whom the information pertains who is permitted to bring a 12 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB civil action in a United States District Court. Id. at 4. The District Court understood that, at the time its Opinion was issued “Florida is not in compliance with the DPPA because it still allows drivers license information to be purchased for bulk distribution for surveys, marketing or solicitations when then [sic] the Department has implemented methods and procedures to ensure that: (a) individuals are provided an opportunity, in a clear and conspicuous manner, to prohibit such uses.” Id. at 4 (citing § 119.07(3)(a)(12), Florida Statutes (2003)).4 The District Court’s opinion analyzed Fitzpatrick v. IRS, 665 F.2d 327, 330-31 (11th Cir. 1982) regarding whether liability could attach under the DPPA when a Plaintiff brings a lawsuit without having suffered actual damages. (Order at 6). The District Court further recognized that: “in the 11th Circuit, it was not necessary for a Plaintiff to prove actual damages before being entitled to receive the minimum statutory award under the Privacy Act.” Id. The District Court noted that the Fourth Circuit rendered a conflicting opinion with respect to the Privacy Act in Doe v. Chao, 306 F.3d 170, 177 (4th Cir. 2002). Id. at 176-7. The District Court relied upon the Supreme Court’s grant of certiorari in Doe v. Chao as evidence that the Supreme Court intended to resolve the conflict among the circuits concerning whether proof of actual damages was required in lawsuits brought under the Privacy Act. Id. 4 Citations and footnotes are omitted, and emphasis is added, unless otherwise noted. 13 Case No. 04-13306-BB action in a United States District Court. Id. at 4. The District Court understood its Opinion was issued "Florida is not in compliance with the DPPA allows drivers license information to be purchased for bulk distribution surveys, marketing or solicitations when then the Department has methods and are provided an opportunity, in a clear and conspicuous manner, to prohibit such uses." Id. at 4 § 3) (Florida Statutes (2003)).4 Court's opinion v. IRS, 665 F.2d 327, 330-31 (11th Cir. 1982) regarding whether could attach under the DPPA when a Plaintiff brings a lawsuit without having (Order at 6). The District Court further recognized that: "in Circuit, it was not necessary for a Plaintiff to prove actual damages before to receive the minimum statutory award under the Privacy Act." Id. Court noted that the Fourth Circuit rendered a conflicting opinion respect to the Privacy Act in Doe v. Chao, 306 F.3d 170, 177 (4th Cir. 2002). Id. The District Court relied upon the Supreme Court's grant of certiorari in v. Chao as evidence that the Supreme Court intended to resolve the confict the circuits concerning whether proof of actual damages was required in brought under the Privacy Act. Id. 4 Citations are omitted, and emphasis is added, unless otherwise 13 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB The District Court recognized that Kehoe had argued that there was a clear distinction between the Privacy Act and the DPPA with respect to the text of each statute. (Order at 8). Specifically, Kehoe argued that the limiting language in the Privacy Act distinguished it from the DPPA, which contains no such language. Id. In the Privacy Act, recovery of statutory damages was specifically limited to “persons entitled to recovery.” The District Court recognized that this language was not included in the DPPA. Id. The District Court recognized that “the issue for this Court to decide is whether the DPPA’s failure to include any language limiting recovery to ‘persons entitled to recovery’ means that a Plaintiff lacking actual damages may still collect the $2,500.00 minimum statutory award.” Id. The District Court found that, under certain principles of statutory construction, Fidelity’s reading of the DPPA should be applied. (Order at 8). Specifically, the District Court purported to apply a rule of statutory constriction known as the rule of the “last antecedent” which provides: When construing statutes – qualifying words, phrases and clauses are to be applied to the words or phrase immediately precedent, are not to be construed as extending to and including others more remote. Id. The District Court then drew an analogy between the DPPA and the remedies section of the Electronic Communications Privacy Act of 1986 (“ECPA”), 18 USC 14 Case No. 04-13306-BB Court recognized that Kehoe had argued that there was a clear between the Privacy Act and the DPPA with respect to the text of each at 8). Specifcally, Kehoe argued that the limiting language in the Act distinguished it from the DPPA, which contains no such language. Id. In Act, recovery of statutory damages was specifcally limited to "persons to recovery." The District Court recognized that this language was not in the DPPA. Id. The District Court recognized that "the issue for this Court the DPPA's failure to include any language limiting recovery to `to recovery' means that a Plaintiff lacking actual damages may still the $2,500.00 minimum statutory award." Id. Court found that, under certain principles of statutory construction, Fidelity's reading of the DPPA should be applied. at 8). Specifcally, the Court purported to apply a rule of statutory constriction known as the rule of "last antecedent" which provides: statutes -qualifying words, phrases and clauses to the words or phrase immediately precedent, to and including others more Court then drew an analogy between the DPPA and the remedies the Electronic Communications Privacy Act of 1986 ("ECPA"), 18 USC 14 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB §2520. (Order at 8). The District Court analyzed the language of the ECPA and found that Congress had intended to create a statutory minimum in that statute. Id. at 8-9. The Court distinguished the language of the DPPA and stated that Congress “could have drafted the DPPA’s damages provision to read: The Court may award – the greater of actual damages or statutory damages in the amount of $2,500.00. Id. at 9. The District Court then went on to distinguish the DPPA’s language citing its differences with the ECPA. The District Court found that [T]he plain language of the ECPA and Section 7341 established that Congress knew how to draft a statute providing minimum statutory damages for violations of the DPPA. Congressional unwillingness to adopt this language when drafting the DPPA shows that Congress did not intend to allow Plaintiffs without actual damages to receive the $2,500.00 liquidated damages award. Id. at 10. Finally, the District Court treated the obvious implications behind a decision requiring actual damages before filing a DPPA lawsuit. The District Court cited the Supreme Court’s decision in Chao, where the Court noted that “[i]t is easy enough to imagine pecuniary expenses that might turn out to be reasonable in particular cases but fall well short of [the statutory minimum amount of actual damages].” (Order at 11) (citing Chao, 124 S. Ct. at 1211). The District Court found that these statutory minimum amounts were designed to encourage people with “minor actual damages” 15 Case No. 04-13306-BB at 8). The District Court analyzed the language of the ECPA and had to create a statutory minimum in that statute. Id. at The Court distinguished the language of the DPPA and stated that Congress "have drafted the DPPA's damages provision to read: award -the greater of actual damages or statutory of $2,500.00. The District Court then went on to distinguish the DPPA's language citing its with the ECPA. The District Court found that he plain language of the ECPA and Section 7341 established Congress knew how to draft a statute providing minimum damages for violations of the DPPA. Congressional to adopt this language when drafting the DPPA Congress did not intend to allow Plaintiffs without damages to receive the damages at 10. the District Court treated the obvious implications behind a decision actual damages before filing a DPPA lawsuit. The District Court cited the Court's decision in Chao, where the Court noted that "[i]t is easy enough to expenses turn out to be reasonable particular cases well short of [the statutory minimum amount of actual damages]." (Order at 11) Chao, Ct. at 1211). The District Court found that these statutory amounts were designed to encourage people with "minor actual damages" 15 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB to file complaints against defending parties, and were “not designed to allow those suffering no actual damages to file claims.” Id. This appeal followed. A. Statement or Standard of Scope of Review On appeal, the standard of review for the granting of Summary Final Judgment is de novo. Carter v. Galloway, 352 F.3d 1346, 1348-49 (11th Cir. 2003)(“We review the district court’s rulings on motion for summary judgment de novo, applying the same legal standards that bound the district court.”); National Fire Ins. Co. of Hartford v. Fortune Constr. Co., 320 F.3d 1260, 1267 (11th Cir. 2003)(same). SUMMARY OF ARGUMENT In its Opinion, the KEHOE Court distances itself from an entire history of American Jurisprudence which provides that statutory liquidated damage provisions are an appropriate remedy for an invasion of privacy. This concept originates from an 1890 Law Review Article authored by Samuel Warren and Louis Brandeis. Subsequent commentators have recognized the importance of liquidated damage provisions in privacy statutes which were conceived by Legislatures in order to, among other things, relieve juries from making difficult and, indeed, highly discretionary damage calculations. In addition to the DPPA, which is at issue here, there are numerous Federal statutes which contain similar provisions and invoke virtually identical language. 16 Case No. 04-13306-BB complaints against defending parties, and were "not designed to allow those no actual damages to file claims." Id. followed. or Standard of Scope of Review for the granting of Summary Final Judgment Carter v. Galloway, 352 F.3d 1346, 1348-49 (11th Cir. 2003)("We review court's rulings on motion for summary judgment de novo, applying the standards that bound the district court."); National Fire Ins. Co. of v. Fortune Constr. Co., 320 F.3d 1260, 1267 (11th Cir. 2003)(same). OF ARGUMENT its Opinion, the KEHOE Court distances itself from an entire history of Jurisprudence which provides that statutory liquidated damage provisions remedy for an invasion of privacy. This concept originates from 1890 Law Review Article authored by Samuel Warren and Louis Brandeis. have recognized the importance of liquidated damage in privacy statutes which were conceived by Legislatures in order to, other things, relieve juries from making diffcult and, indeed, highly damage calculations. addition to the DPPA, which is at issue here, there are numerous Federal contain similar provisions and invoke virtually identical language. 16 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Those statutes include the Video Privacy Protection Act, the Electronic Communications Privacy Act, the Cable Communications Policy Act and the Telephone Consumer Protection Act. The District Court’s decision in KEHOE stands alone in its analysis of the liquidated damage provision of the DPPA, particularly with respect to its imposition of a requirement that actual damages be shown before a party may be compensated for an invasion of privacy. The District Court in KEHOE misinterpreted the DPPA by utilizing tools of statutory construction --such as the last antecedent rule --when a more appropriate inquiry would have focused simply upon the plain language of the statute. The District Court’s interpretation of the DPPA eviscerates its impact. KEHOE interprets the DPPA as providing for mandatory minimum statutory liability of $2,500.00 without proof of actual damages. KEHOE believes that the mandatory minimum statutory liability stems from, among other things, Congress’ use of the words “shall be liable.” However, under the District Court’s Opinion, no one is liable. Moreover, the District Court’s reading of the DPPA absolutely defeats its very purpose as expressed by Congress --to provide a deterrent against would be DPPA violators. Now those who violate the DPPA can take solace in the fact that, unless a prospective Plaintiff can show “actual damages,” a DPPA violator will get off scotfree. 17 Case No. 04-13306-BB statutes include the Video Privacy Protection Act, the Electronic Privacy Act, the Cable Communications Policy Act and the Act. The District Court's decision in KEHOE stands damage provision of the DPPA, particularly with of a requirement that actual damages be shown before a party for an invasion of privacy. Court in KEHOE misinterpreted the DPPA by utilizing tools of -such as the last antecedent rule -when a more appropriate would have focused simply upon the plain language of the statute. The Court's interpretation of the DPPA eviscerates its impact. KEHOE interprets DPPA as providing for mandatory minimum statutory liability of $2,500.00 proof of actual damages. KEHOE believes that the mandatory minimum liability stems from, among other things, Congress' use of the words "shall liable." However, under the District Court's Opinion, no one is liable. the District Court's reading of the DPPA absolutely defeats its very --to provide a deterrent against would be DPPA Now those who violate the DPPA can take solace in the fact that, unless a Plaintiff can show "actual damages," a DPPA violator will get off scotfree. 17 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB The District Court inappropriately relied upon Chao. The statute at issue in Chao --The Federal Privacy Act --specifically contains a provision that provides that the Government is liable for “actual damages sustained by the individual. . ., but in no case shall a person entitled to recovery receive less than $1,000.00.” 5 U.S.C. §522(a)(g)(4)(a) (emphasis added). There is no doubt that Chao rests primarily upon the Court’s analysis of the language, “persons entitled to recovery,” to arrive at its conclusion that actual damages are required before a recovery may be made under the Privacy Act. There is no such language in the DPPA, making the statute wholly distinguishable from the Federal Privacy Act. Additionally, the distinctions accorded to lawsuits against the Government and those against private parties, such as in this case, creates another important distinction between the DPPA and the Privacy Act and, therefore, between this case and Chao. Congress was obviously concerned about the public fisc when it enacted the Privacy Act and that is why it included the words “persons entitled to recovery.” Finally, in this case, KEHOE requested injunctive relief requiring that FIDELITY destroy all of the personal information which it obtained regarding Florida title registrants and specifically requested, in the wherefore clause of the Complaint, “such other preliminary and equitable relief as the Court deems to be appropriate.” KEHOE requested the certification of a class action. Although KEHOE timely filed his Motion for Class Certification, the Court deferred ruling on that pending motion 18 Case No. 04-13306-BB Court inappropriately relied upon Chao. The statute at issue in -The Federal Privacy Act --specifically contains a provision that provides is liable for "actual damages sustained by the individual..., but to recovery receive less than $1,000.00." 4)(a) (emphasis added). There is no doubt that Chao rests primarily upon Court's analysis of the language, "persons entitled to recovery," to arrive at its that actual damages are before a recovery may be made under the Act. There is no such language in the DPPA, making the statute wholly from the Federal Privacy Act. the distinctions accorded to lawsuits against the Government and such and the Privacy Act and, therefore, between this case and Chao. concerned about the public fisc when it enacted the Privacy and that is why it included the words "persons entitled to recovery." in this case, KEHOE requested injunctive relief requiring that destroy all of the personal information which it obtained regarding Florida registrants and specifcally requested, in the wherefore clause of the Complaint, "other preliminary and equitable relief as the Court deems to be appropriate." requested the certifcation of a class action. Although KEHOE timely fled for Class Certifcation, the Court deferred ruling on that pending motion 18 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB and, instead, granted Summary Judgment dismissing all of his claims. That was error. The District Court should not have dismissed KEHOE’S Motion for Class Certification merely because FIDELITY ceased its practice of unlawfully obtaining protected information on Florida title registrants. Numerous Courts have certified classes under Fed.R.Civ.P. 23(b)(2) where the Defendants have taken steps following the filing of the lawsuit to effectively remove the need for injunctive relief. In sum, the District Court should have certified a Rule 23(b)(2) Class before granting Summary Judgment. 19 Case No. 04-13306-BB all of his claims. That was error. District Court should not have dismissed KEHOE'S Motion for Class Certifcation merely because FIDELITY ceased its practice of unlawfully obtaining information on Florida title registrants. Numerous Courts have certifed under P. b)(2) where the Defendants have taken steps following of the lawsuit to effectively remove the need for injunctive relief. In sum, District Court should have certifed a Rule 23(b)(2) Class before granting 19 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB ARGUMENT THE ORDER OF THE DISTRICT COURT GRANTING FIDELITY’S RENEWED MOTION FOR SUMMARY JUDGMENT MUST BE REVERSED I. Liquidated Damage Provisions Are Long-Standing Remedies for Privacy Violations In order for this Court to properly understand the potential impact of the District Court’s Order in this case, it is important for this Court to consider the evolution of privacy law in America based upon common law principles and Federal legislation. Violation of privacy is such an intangible harm that it has become increasingly significant in tort law. A central problem in privacy cases is the difficulty of the injured party to demonstrate economic or special damages. See, e.g., Frederick Lodge, Damages Under the Privacy Act of 1974: Compensation and Deterrence, 52 Fordham L. Rev. 611, 612 (1984). This problem was well understood by Samuel Warren and Louis Brandeis, the authors of the famous article that provided the basis for the tort now known as invasion of privacy. Samuel Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 219 (1890) (“Even in the absence of special damages, substantial compensation could be allowed for injury to feelings as in the action of slander and libel.”). Thus, in order to compensate the victim and recognize that a harm was committed, though it may be difficult to quantify, privacy statutes have historically 20 Case No. 04-13306-BB ORDER OF THE DISTRICT COURT GRANTING FIDELITY'S RENEWED MOTION FOR SUMMARY MUST BE REVERSED Damage Provisions Are Long-Standing Remedies for Privacy this Court to properly understand the potential impact of the District Court's Order in this case, it is important for this Court to consider the evolution of law in America based upon common law principles and Federal legislation. of privacy is such an intangible harm that it has become increasingly signifcant in tort law. A central problem in privacy cases is the difficulty of the to demonstrate economic or special damages. See, Lodge, the Act of 1974: Compensation and Deterrence, 52 Fordham 611, 612 (1984). This problem was well understood by Samuel Warren and Brandeis, the authors of the famous article that provided the basis for the tort as of privacy. Samuel Warren and Louis D. Brandeis, The Right 4 Harv. L. Rev. 193, 219 (1890) ("Even in the absence of special damages, compensation could be allowed for injury to feelings as in the action of libel."). in order to compensate the victim and recognize that a harm was though it may be diffcult to quantify, privacy statutes have historically 20 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB included liquidated damages provisions. 5 Where there is an intentional violation of a privacy statute, awards of such damages ensure compensation for the victim, deter future violations, and promote judicial economy by reducing the need for a difficult determination of harm. A. Privacy Scholars Recognize the Critical Role of Liquidated Damage Provisions in Privacy Statutes Scholars have argued that the purpose of liquidated damages in privacy statutes is not only to compensate the victim for an intangible harm, but also to provide enforcement of such statutes. Mark E. Budnitz, Privacy Protection For Consumer Transactions in Electronic Commerce: Why Self-Regulation is Inadequate, 49 S.C.L. Rev. 847, 883 (1998). Professor Jay Weiser has written that federal privacy statutes attempt to resolve the difficulty in calculating damages through liquidated damages provisions, which in turn saves enforcement costs. Jay Weiser, Measure of Damages for Violation of Property Rules: Breach of Confidentiality, 9 U. Chi. L. Sch. Roundtable 75, 100 (2002). Liquidated damage provisions also relieve juries of difficult damages determinations. Thus, highly discretionary calculations of damages are unnecessary. The purpose of statutory damages is both to encourage a victim to pursue a case under a privacy statute and to serve as a deterrent to would-be violators. 5 KEHOE expects Amicus Curiae to treat the meaning of the phrase “liquidated damages” in depth. 21 Case No. 04-13306-BB liquidated damages provisions.' Where there is an intentional violation of a statute, awards of such damages ensure compensation for the victim, deter violations, and promote judicial economy by reducing the need for a difficult of harm. Scholars Recognize the Critical Role of Liquidated Damage Provisions in Privacy Statutes damages statutes not only to compensate the victim for an intangible harm, but also to provide of such statutes. Mark E. Budnitz, Privacy Protection For Consumer in Electronic Commerce: Why Self-Regulation is Inadequate, 49 S.C.L. 883 (1998). Professor Jay Weiser has written that federal privacy statutes resolve the difficulty in calculating damages through liquidated damages which in turn saves enforcement costs. Jay Weiser, Measure ofDamages for Violation of Property Rules: Breach of Confdentiality, 9 U. Chi. L. Sch. 75, 100 (2002). Liquidated damage provisions also relieve juries of damages determinations. Thus, highly discretionary calculations of damages The purpose of statutory damages is both to encourage a victim to under a privacy a deterrent to would-5 expects Amicus Curiae to treat the meaning of the phrase "liquidated damages" depth. 21 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Frank P. Anderano, The Evolution of Federal Computer Crime Policy, 27 Am. J. Crim. L. 81, 98 (1999). B. Liquidated Damage Provisions Are Routinely Included in Statutory Privacy Laws 1. The Video Privacy Protection Act Numerous privacy statutes contain liquidated damages provisions to both compensate the victim and deter future violations. For example, the Video Privacy Protection Act of 1988 (“VPPA”) provides for a statutory damage award where intentional violations of the VPPA occur. 18 U.S.C. §2710. The VPPA provides that: “the court may award actual damages but not less than liquidated damages in an amount of $2,500.00.” 18 U.S.C. §2710(c)(2)(A). See, e.g., Dirkes v. Borough of Runnemede, 936 F. Supp. 235, 239 n.4 (D.N.J. 1996) (under the plain language of the VPPA, the court found that plaintiffs could show that they were “aggrieved” by showing a violation of the Act without proof of additional harm). Notably, utilizing what is essentially the same language, the DPPA provides that the court may award: “(1) actual damages, but not less than liquidated damages in the amount of $2,500.00” against “[a] person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter[.]” 18 U.S.C. §2724(b)(1). 22 Case No. 04-13306-BB P. Anderano, The Evolution of Federal Computer Crime Policy, 27 Am. J. L. 81, 98 (1999). Damage Provisions Are Routinely Included in Statutory Privacy Laws Video Privacy Protection Act privacy statutes contain liquidated damages provisions to both and deter future violations. For example, the Video Privacy Act of 1988 ("VPPA") provides for a statutory damage award where violations of the VPPA occur. The VPPA provides that: "court may award actual damages but not less than liquidated damages in an $2,500.00." §2710(c)(2)(A). See, e.g., Dirkes v. Borough of N.J. 1996) (under the plain language of the the court found that plaintiffs could show that they were "aggrieved" by a of the Act without proof of additional harm). Notably, utilizing essentially the same language, the DPPA provides that the court may award: "(damages, damages the amount of $2,500.00" "[a] person who knowingly obtains, discloses or uses personal information, a motor vehicle record, for a purpose not permitted under this chapter[.]" §2724(b)(1). 22 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB 2. The Electronic Communications Privacy Act Similarly, the ECPA establishes statutory damage awards, depending on the type of violation. For example, in relation to the interception of electronic communications, the ECPA provides that: [I]f the person who engaged in that conduct was not previously enjoined under section 2511(5) and has not been found liable in a prior civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $50 and no more than $500. 18 U.S.C. §2520(c)(1)(A). The court is required to award statutory damages of no less than $100 and no more than $1,000 for victims of those who have violated ECPA on a previous occasion. 18 U.S.C. §2520(c)(1)(B). For more than two violations of ECPA, the statute provides that: [I]n any other action under this section the court may assess as damages whichever is the greater of (A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or (B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.00. 18 U.S.C. §2520(c)(2)(B). Furthermore, regarding unlawful access to stored communications, the ECPA provides that the court may assess actual damages suffered by the plaintiff and profits made by the violator as a result of the violation, “but in no case shall a person entitled to recover receive less than the sum of $1,000.” 18 U.S.C. §2707(c). 23 Case No. 04-13306-BB Electronic Communications Privacy Act the ECPA establishes statutory damage awards, depending on the of violation. For example, in relation to the interception of electronic the ECPA provides that: f the person who engaged in that conduct was not previously section 2511(5) and has not been found liable in a civil action under this section, the court shall assess the the sum of actual damages suffered by the plaintiff, or damages of not less than $50 and no more than $500. §2520(c)(1)(A). The court is required to award statutory damages of no victims of those who have violated ECPA occasion. c)(1)(B). For more than two violations of the statute provides that: n any other action under this section the court may assess as is the greater of (A) the sum of the actual by the plaintiff and any profits made by the as a result of the violation; or (B) statutory damages of is the greater of $100 a day for each day of violation or c)(2)(B). regarding unlawful access to stored communications, the ECPA the may assess and profts as a of the violation, "but in no case shall a person entitled receive less than the sum of $1,000." c). 23 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB The courts have held that proof of actual damages is not necessary under the ECPA. See, e.g., Halperin v. Kissinger, 606 F.2d 1192 (D.C. Cir. 1979) cert. granted, 446 U.S. 951 (1980) aff’d in part, 452 U.S. 713 (even if constitutional violation inflicts only intangible injury, monetary compensation is still appropriate). 3. The Cable Communications Policy Act The Cable Communications Policy Act (“CCPA”), which protects the privacy of cable television subscribers, provides that “the court may award actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation of $1,000, whichever is higher.” 47 U.S.C. §551(f)(2)(A). Metrovision of Livonia, Inc. v. Wood, 864 F. Supp. 675 (E.D. Mich. 1994) (cable customers entitled to recovery of statutory, liquidated damages even in absence of actual damages); Warner v. Am. Cablevision of Kansas City, Inc., 699 F. Supp. 851 (D. Kan. 1988) (subscriber whose cable operator failed to comply with the CCPA when it failed to give him required disclosures at time of installation and subsequently gave him incomplete disclosure was entitled to recover statutory liquidated damages for $1000 for each of the two violations, together with reasonable attorney’s fees and costs). 4. The Telephone Consumer Protection Act The Telephone Consumer Protection Act (“TCPA”), a privacy statute that protects individuals from constant telemarketing and unsolicited facsimile advertisements, also provides for statutory damages: “for actual monetary loss from 24 Case No. 04-13306-BB have held that proof of actual damages is not necessary under the See, v. Kissinger, 606 F.2d 1192 (D.C. Cir. 1979) cert. granted, U.S. 951 affd in part, 452 U.S. 713 (even if constitutional violation only intangible injury, monetary compensation is still appropriate). 3. Cable Communications Policy Act Policy Act ("CCPA"), which protects the privacy subscribers, provides that "the court may award actual damages but liquidated damages computed at the rate of $100 a day for each day of of $1,000, whichever is higher." §551(f)(2)(A). Metrovision of Inc. v. Wood, 864 F. Supp. 675 (E.D. Mich. 1994) (cable customers entitled recovery of statutory, liquidated damages even in absence of actual damages); v. Am. Cablevision of Kansas City, Inc., 699 F. Supp. 851 (D. Kan. 1988) whose cable operator failed to comply with the CCPA when it failed to him required disclosures at time of installation and subsequently gave him disclosure was entitled to recover statutory liquidated damages for $1000 of the two violations, together with reasonable attorney's fees and costs). Telephone Consumer Protection Act Telephone Consumer Protection Act ("TCPA"), a privacy statute that individuals from constant telemarketing and unsolicited facsimile also provides for statutory damages: "for actual monetary loss from 24 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB such violation, or to receive $500 in damages for each such violation. . .” 47 U.S.C. §227(b)(3). Forman v. Data Transfer, Inc., 164 F.R.D. 400 (E.D. Pa. 1995)(TCPA provision that allows recipients of unsolicited advertisements by facsimile machine to recover greater of actual monetary loss or $500 in damages for each violation was designed to provide adequate incentive for individual plaintiff to bring suit on his own behalf). 5. The Right to Financial Privacy Act Additionally, under the Right to Financial Privacy Act of 1974 (“RFPA”), now, a successful plaintiff may collect $100 per RFPA violation from the defendant. 12 U.S.C. §3417(a)(1). As the drafters of the DPPA and other privacy statutes enacted understood, liquidated damage provisions are an essential requirement for meaningful privacy protection. As demonstrated below, the District Court ignored the entire history of both privacy litigation and legislation in the United States in granting summary judgment for Fidelity. The District Court interpreted the language of the DPPA in a manner that is truly unique, not only to the history of the DPPA itself, but to the history of Federal Privacy Statutes in the United States. This was error. II. The District Court Misinterpreted the DPPA The District Court’s results oriented approach to statutory interpretation should be rejected. In interpreting a statute, Courts must begin with the statute’s plain 25 Case No. 04-13306-BB or to receive $500 in damages for each such violation. . ." 3). Forman v. Data Transfer, Inc., 164 F.R.D. 400 (E.D. Pa. 1995)(TCPA that allows recipients of unsolicited advertisements by facsimile machine to greater of actual monetary loss or $500 in damages for each violation was for individual plaintiff to bring suit on his own 5. Right to Financial Privacy Act under the Right to Financial Privacy Act of 1974 ("RFPA"), now, may collect $100 per RFPA violation from the defendant. §3417(a)(1). As the drafters of the DPPA and other privacy statutes enacted damage provisions are an essential requirement for meaningful protection. As demonstrated below, the District Court ignored the entire of both privacy litigation and legislation in the United States in granting for Fidelity. Court interpreted the language of the DPPA in a manner that is unique, not only to the history of the DPPA itself but to the history of Federal Statutes in the United States. This was error. District Court Misinterpreted the DPPA Court's results oriented approach to statutory interpretation should rejected. In interpreting a statute, Courts must begin with the statute's plain 25 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB language. Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 933 (11th Cir. 2000); Senator Linie Gmbh & Co. Kg v. Sunway Line, Inc., 291 F.3d 145, 154 (2d Cir. 2002). The relevant DPPA provision at issue provides: (a) Cause of action. --A person who knowingly, obtains, discloses or uses personal information, from a Motor Vehicle Record for a purpose not permitted under this Chapter…shall be liable to the individual to whom the information pertains, who may bring a civil action in the United States District Court. (a) Remedies. --The Court may award (1) actual damages, but not less than liquidated damages in the amount of $2,500.00; … 18 U.S.C. §2724(a) (emphasis added). Like the legion of Federal cases interpreting virtually identical Federal privacy statutes, Kehoe interprets the DPPA as providing for a mandatory minimum statutory liability of $2,500.00 without proof of actual damages. See, e.g., Margan v. Niles, 250 F. Supp. 2d 63, 70 (N.D.N.Y. 2003)(Defendant liable for recording license plate number and unlawfully conducting motor vehicle records search for name and address); Luparello v. Garden City, 290 F. Supp. 2d 341 (E.D.N.Y. 2003)(Plaintiff must only plead and prove two things in a DPPA case – “That Defendants caused a DPPA search to be made as to each Plaintiff; and that the search was not permitted by any exception of the DPPA”); Cowan v. Codelia, 2001 WL 856606, 8 (S.D.N.Y. 2001), aff’d 2002 WL 31478922 (2d Cir. 2002)(To establish a claim under the DPPA, 26 Case No. 04-13306-BB Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 933 (11th Cir. 2000); Gmbh & Co. Kg v. Sun way Line, Inc., 291 F.3d 145, 154 (2d Cir. 2002). DPPA provision at issue provides: Cause of action. A person who knowingly, obtains, or uses personal information, from a Motor Vehicle a purpose not permitted under this Chapter ...shall be to the individual to whom the information pertains, who a civil action in the United States District Court. --The Court may award damages, but not less than liquidated damages in of $2,500.00; ... a) (emphasis added). the legion of Federal cases interpreting virtually identical Federal privacy as providing for a mandatory minimum statutory of $2,500.00 without proof of actual damages. See, e.g., Margan v. Nles, 250 Supp. 2d 63, 70 (N.D.N.Y. 2003)(Defendant liable for recording license plate and unlawfully conducting motor vehicle records search for name and v. Garden City, 290 F. Supp. 2d 341 (E.D.N.Y. 2003)(Plaintiff plead and prove two things in a DPPA case -"That Defendants caused a and that the search was not permitted by of the DPPA"); Cowan v. Codelia, 2001 WL 856606, 8 (S.D.N.Y. af'd 2002 WL 31478922 (2d Cir. 2002)(To establish a claim under the DPPA, 26 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB the Plaintiffs must establish: (1) the defendants caused a DMV search to be made as to each plaintiff; and (2) that the search was not permitted by any exception to the DPPA). KEHOE respectfully submits that, in effect, it is this District Court’s ruling that this is the incorrect exception rather than the correct rule. The best way to read the statute is simply to read the plain language. Extrinsic aids to construction, such as that “last antecedent rule” should be used only when the plain statutory language is otherwise vague and unclear. Allapattah Servs. v. Exxon Corp., 333 F.3d 1248, 1254 (11th Cir. 2003) (“when construing a statute [the court] must begin, and often should end as well, with the language of the statute itself ... because [the court] must presume that a legislature says in a statute what it means and means in a statute what it says there.”); In re Paschen, 296 F.3d 1203, 1209 (11th Cir. 2002) (“[t]he plain meaning of legislation should be conclusive, except in rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.”) (quoting United States v. Ron Pair Enters., Inc. 489 U.S. 235, 242, 109 S. Ct. 1026, 1031, 103 L. Ed. 2d 290 (1989)) (alteration in original) (internal quotation marks omitted). The District Court’s interpretation of the DPPA substantially removes its teeth and renders the words “shall be liable” nugatory. Section 2724(a) of the DPPA provides for what is essentially strict liability to those who violate the statute provided that the violator does not fall within any of the enumerated exceptions. Cf. 18 U.S.C. 27 Case No. 04-13306-BB must establish: search to be made as and (2) that the search was not permitted by any exception to the KEHOE respectfully submits that, in effect, it is this District Court's ruling is the incorrect exception rather than the correct rule. to read the plain language. Extrinsic such as that "last antecedent rule" should be used only when the statutory language is otherwise vague and unclear. Allapattah Servs. v. Exxon 333 F.3d 1248, 1254 (11th Cir. 2003) ("when construing a statute [the court] and often should end as well, with the language of the statute itself ... presume that a says in a statute what it means and there."); In re Paschen, 296 F.3d 1203, 1209 (11th Cir. ("[t]he plain meaning of legislation should be conclusive, except in rare cases which] the literal application of a statute will produce a result demonstrably at the intentions of its drafters.") (quoting United States v. Ron Pair Enters., S. 235, 242, 109 S. Ct. 1026, 1031, 103 L. Ed. 2d 290 (1989)) (alteration in (internal quotation marks omitted). Court's interpretation of the DPPA substantially removes its teeth the words "shall be liable" nugatory. Section 2724(a) of the DPPA for what is essentially strict liability to those who violate the statute provided does not fall within any of the enumerated exceptions. Cf 18 U.S.C. 27 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB §2721(b) (listing statutory exceptions). This reading of the statute comports with Senator Boxer’s imprimatur which was voiced during the November 16, 1993 committee hearings regarding the DPPA: “Can we afford to wait until every state has their own tragedy? That is not the way to legislate.” Kehoe submits that Senator Boxer’s comments at the November 16, 1993 Committee hearing, among other things, obliterates the District Court’s rationale for requiring proof of actual harm before liability is assessed for a DPPA violation. In fact, the District Court’s decision makes clear that, even though Fidelity violated the DPPA both as to Kehoe and potential members of the class, and admitted doing so, Fidelity was found not to be liable to anyone, unless individuals can prove that they suffered actual damages. At a minimum, the District Court could have determined that Fidelity was liable to Kehoe even if it also determined that Kehoe must prove actual damages in order to recover. The question of liability is certainly important in order for the parties to make an analysis of who the prevailing party is in this case which has a direct bearing on whether Kehoe will recover his attorneys’ fees. See 18 U.S.C. §2724(b)(3). The District Court’s Opinion does not address the statutory language in Section 2724(a) that a person who violates the DPPA “shall be liable.” It is well settled that “shall”, in the context of the statute, means “must”. See e.g., Alabama v. Bozeman, 533 U.S. 146, 153, 121 S. Ct. 2079, 2085, 150 L. Ed. 2d 188 (2001)(As used in statutes, the word “shall” is ordinarily the language of command); Lexecon Inc. v. 28 Case No. 04-13306-BB (listing statutory exceptions). This reading of the statute comports with Boxer's imprimatur which was voiced during the November 16, hearings regarding the DPPA: "Can we afford to wait until every state has own tragedy? That is not the way to legislate." Kehoe submits that Senator Boxer's comments at the November 16, 1993 Committee hearing, among other things, the District Court's rationale for requiring proof of actual harm before is assessed for a DPPA violation. In fact, the District Court's decision makes even though Fidelity violated the DPPA both as to Kehoe and potential the class, and admitted doing so, Fidelity was found not to be liable to unless individuals can prove that they suffered actual damages. At a the District Court could have determined that Fidelity was liable to Kehoe also determined that Kehoe must prove actual damages in order to recover. of liability is certainly important in order for the parties to make an of who the prevailing party is in this case which has a direct bearing on Kehoe will recover his attorneys' fees. See 18 U.S.C. §2724(b)(3). Court's Opinion does not address the statutory language in Section violates the DPPA "shall be liable." It is well settled that "shall", in the context of the statute, means "must". See e.g., Alabama v. Bozeman, S. 2085, Ed. 2d 188 (2001)(As used in "shall" is ordinarily the language of command); Lexecon Inc. v. 28 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35, 118 S. Ct. 956, 962, 140 L. Ed. 2d 62 (1998)(statute’s use of the mandatory term “shall” normally creates an obligation impervious to judicial discretion); Shenago Inc. v. Apfel, 307 F.3d 174, 193 (3rd Cir. 2002)(the term “shall” is generally mandatory when used in a statute). Moreover, sound principles of statutory construction mandate that courts should not read the words of a statute to render any portion of the statute’s language superfluous or meaningless. Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 124 S. Ct. 983, 1002 n.13, 157 L. Ed. 2d 967 (2004)(It is a cardinal principle of statutory construction that statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant). In this case, the District Court’s analysis of the DPPA has rendered the words “shall be liable” meaningless. Specifically, the District Court’s Opinion suggests that, even though Fidelity violated the DPPA, no one is liable to Kehoe (or any of the potential class members) as a result. Further, the District Court’s reading of the DPPA also eviscerates the language “but not less than” regarding liquidated damages. It is well settled that a Court must give effect to every word contained within a statute. TRW, Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441,449, 151 L. Ed. 2d 339 (2001). Generally, courts should apply statutes as written, not as they should have been written with the benefit of hindsight. In Re Gardenhire, 209 F.3d 1145, 1152 (9th Cir. 29 Case No. 04-13306-BB Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35, 118 S. Ct. 956, 962, 140 L. 2d 62 (1998)(statute's use of the mandatory term "shall" normally creates an impervious to judicial discretion); Shenago Inc. v. Apfl, 307 F.3d 174, 193 the term "shall" is generally mandatory when used in a statute). sound principles of statutory construction mandate that courts should read the words of a statute to render any portion of the statute's language or meaningless. Alaska Dep't ofEnvtl. Conservation v. EPA, 540 U.S. 983, 1002 n.13, 157 L. Ed. 2d 967 (2004)(It is a cardinal principle of that statute ought, upon the whole, to be so construed that, if it be prevented, no clause, sentence, or word shall be superfuous, void, or In this case, the District Court's analysis of the DPPA has rendered the "shall be liable" meaningless. Specifcally, the District Court's Opinion Fidelity violated the DPPA, no one is liable to Kehoe (or potential class members) as a result. Court's reading of the DPPA also eviscerates the language "not less than" regarding liquidated damages. It is well settled that a Court must to every word contained within a statute. TRW, Inc. v. Andrews, 534 U.S. 151 L. Ed. 2d 339 (2001). courts should apply statutes as written, not as they should have been with the beneft of hindsight. In Re Gardenhire, 209 F.3 d 1145, 1152 (9th Cir. 29 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB 2000). However, in construing the DPPA, the District Court apparently read the statute as it wished it had been written, rather than as it actually was written. Engaging in statutory gymnastics in order to avoid what it may perceive as, potentially, an unfair result, is not a court’s function. Moreover, words of a statute are not to be disregarded in search of equity or congressional intent. In re Parffrey, 264 B.R. 409, 414 (Bankr. S.D. Tex. 2001)(citing Ron Pair Enters., Inc., 489 U.S. 235)(Statute provides that when payments made in Chapter 13 bankruptcy are complete, court shall grant discharge, giving no discretion to court). Moreover, the District Court inappropriately relied upon Spurlock v. Postmaster Gen., 19 Fed. Appx. 338, 340 (6th Cir. 2001) to come to the unjustified conclusion that liquidated damages may only be awarded upon a showing of economic damages. First, Spurlock was not a privacy case making it wholly inapposite for that reason alone. As demonstrated infra, there is an entire body of Federal jurisprudence and scholarly commentary which isolates the invasion of privacy as unique and provides ample reasoning, based upon substantial historical precedent, as to why statutory damage remedies for privacy violations have always provided for liquidated damages, in the absence of actual damages. See supra at §§I(A), (B). Spurlock involved the interpretation of the Family Medical Leave Act of 1993, 29 U.S.C. §2601 et. seq. (“FMLA”), which statutorily defined the fact that a FMLA plaintiff is not entitled to damages unless a plaintiff could show actual monetary 30 Case No. 04-13306-BB However, in construing the DPPA, the District Court apparently read the as it wished it had been written, rather than as it actually was written. in statutory gymnastics in order to avoid what it may perceive as, an unfair result, is not a court's function. Moreover, words of a statute are in search of equity or congressional intent. In re Parfrey, 264 (Bankr. S.D. Tex. 2001) (Ron Pair Enters., Inc., U.S. 235) (provides that when payments made in Chapter 13 bankruptcy are court shall grant discharge, giving no discretion to court). the Court inappropriately relied upon Spurlock v. Postmaster Appx. 338, 340 (6th Cir. 2001) to come to the unjustified conclusion damages may only be awarded upon a showing of economic damages. Spurlock was not a privacy case making it wholly inapposite for that reason As demonstrated infa, there is an entire body of Federal jurisprudence and commentary which isolates the invasion of privacy as unique and provides reasoning, based upon substantial historical precedent, as to why statutory violations have always provided for liquidated damages, actual damages. See supra at §I(A), (B). involved the interpretation of the Family Medical Leave Act of 1993, S.§2601 et. seq. ("FMLA"), which statutorily defined the fact that a FMLA is not entitled to damages unless a plaintiff could show actual monetary 30 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB damages. The FMLA is a far cry from the DPPA that specifically provides for such a remedy. Finally, the District Court’ s reading of the definition of actual damages set forth in Black’s Law Dictionary has been taken out of context. That definition analyzes contractual liquidated damages provisions as: “a reasonable estimation of actual damages.” However, there is a vast difference between parties to a contract who negotiate a liquidated damages penalty in anticipation of actual monetary loss in, for example, a real property lease, and a statutorily created civil damages remedy in connection with the tort of invasion of privacy which has long been considered a species of harm which can be difficult, if not impossible, to quantify. Simply put, everyone recognizes that a liquidated damages clause in a real property lease is more often than not based upon the lost rental value of the property at issue. In this case, as in all privacy torts, there is no comparable measuring stick. A. The Supreme Court’s Decision in Chao Supports Appellant’s Position The District Court placed undue emphasis upon the United States’ Supreme Court’s Opinion in Chao, 124 S. Ct. at 1204, in order to buttress its analysis that this action could not proceed in the absence of actual damages. However, there are vast differences between this case and Chao and, as demonstrated below, the entire history of Federal privacy litigation remains undisturbed by Chao. 31 Case No. 04-13306-BB is a far cry from the DPPA that specifcally provides for such a the District Court' s reading of the definition of actual damages set in Black's Law Dictionary has been taken out of context. That defnition liquidated damages provisions as: "a reasonable estimation of damages." However, there is a vast difference between parties to a contract a damages penalty in anticipation of actual monetary loss in, a real property lease, and a statutorily created civil damages remedy in with the tort of invasion of privacy which has long been considered a which can be diffcult, if not impossible, to quantify. put, everyone recognizes that a liquidated damages clause in a real lease than not based of the property at In this case, as in all privacy torts, there is no comparable measuring stick. Supreme Court's Decision in Chao Supports Appellant's Position Court placed undue emphasis upon the United States' Supreme Court's Opinion in Chao, 124 S. Ct. at 1204, in order to buttress its analysis that this not proceed in the absence of actual damages. However, there are vast this case privacy litigation remains undisturbed by Chao. 31 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB In Chao, the Supreme Court held that, under the Privacy Act of 1974, 5 U.S.C. § 552a (the “Privacy Act”), a Plaintiff in a putative class action was not entitled to statutory, liquidated damages in the absence of actual damages. In Chao, the Supreme Court granted certiorari to resolve a conflict in the Federal Circuits concerning the meaning and application of the Privacy Act.6 The Chao Court recognized that: “[t]raditionally, the common law has provided… victims [of privacy invasions] with a claim for ‘general’ damages, which for privacy and defamation torts are…presumed damages: a monetary award calculated without reference to specific harm.” Chao, 124 S. Ct. at 1209 (emphasis added; footnote omitted). In fact, the Supreme Court also recognized this basic proposition of law at oral argument when it stated: “…that’s because the invasion of privacy or the infringement of privacy is regarded simply as – as injury per se.” See Transcript of Oral Argument for Doe v. Chao (“Chao Tr.”) at 21. [DE#44]. The Chao Court went on to find that this general principle would not pass muster under the Privacy Act, not because it is not a correct statement of the law, but because the 6 In Chao, the following created a conflict with the Fourth Circuit’s opinion in Chao and were ultimately overruled: Orekoya v. Mooney, 330 F.3d 1, 7-8 (1st Cir. 2003); Wilborn v. Dep’t of Health & Human Servs., 49 F.3d 597, 603 (9th Cir. 1995); Waters v. Thornburgh, 888 F.2d 870, 872 (D.C. Cir. 1989); Johnson v. Dep’t of Treasury, IRS, 700 F.2d 971, 977 & n.2 (5th Cir. 1983); Fitzpatrick, 665 F.2d at 330-31. These were all cases relating to the Privacy Act., 5 U.S.C. §552, et seq. (2003). None of the cases cited on pages 20 through 45 of this Brief, based upon other privacy statutes, were overruled. 32 Case No. 04-13306-BB the Supreme Court held that, under the Privacy Act of 1974, 5 U.S.C. "Privacy Act"), a Plaintiff in a putative class action was not entitled to damages in the absence In Chao, the Supreme granted certiorari to resolve a confict in the Federal Circuits concerning the application of the Privacy Act.6 Chao Court recognized that: "[t]raditionally, the common law has provided... victims /q/privacy invasions] with a claim for `general' damages, which for privacy and defamation torts are.. .presumed damages: a monetary award without reference to specifc harm." Chao, 124 S. Ct. at 1209 (emphasis footnote omitted). In fact, the Supreme Court also recognized this basic of law at oral argument when it stated: "...that's because the invasion of or the infringement of privacy is regarded simply as -injury per se." See of Oral Argument for Doe v. Chao ("Chao Tr.") at 21. 44]. The that this general principle would not pass muster under the Act, not because it is not a correct statement of the law, but because the 6 created a confict with the Fourth Circuit's opinion in ultimately overruled: Orekoya v. Mooney, 330 F.3d 1, 7-8 (1st Cir. v. Dep't ofHealth & Human Servs., 49 F.3d 597, 603 (9th Cir. 1995); Thornburgh, 888 F.2d 870, 872 (D.C. Cir. Johnson v. Dep't of 2d 971, 977 & n.2 (5th Cir. 1983); Fitzpatrick, 665 F.2d at 330-These were all cases relating to the Privacy Act., 5 U.S.C. §552, etseq. (2003). based upon other privacy 32 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Privacy Act, by its terms, does not authorize statutory liquidated damages. Chao, 124 S. Ct. at 1209. Moreover, the Chao Court recognized that the legislative history of the Privacy Act reflected that Congress “cut out the very language in the bill that would have authorized any presumed damages.” Id. at 1209-10. The Supreme Court determined that the omission of presumed damages from the final bill version of the Privacy Act was a “deliberate elimination of any possibility of imputing harm and awarding presumed damages.” Id. The Court found that the deletion of this language “precludes” any hope of a sound interpretation of entitlement to recovery without reference to actual damages. Id. Additionally, as the Solicitor General pointed out in his Brief to the Supreme Court on this issue: “draft bills that expressly provided for liquidated damages and did not use the phrase ‘person entitled to recovery’ were considered and rejected in both the House and Senate.” See Brief for the Respondent Secretary of Labor at 40, Doe v. Chao, 124 S. Ct. 1204 (2004) (No. 02-1377)[DE #44, Tab 1 at 40] available at abanet.briefs/dec03.(the “SG Brief”). The language, “persons entitled to recovery,” was obviously included by Congress in the Privacy Act as a means to limit potential damages that could be awarded against the U.S. Government. In order for this Court to understand the profound differences between the 33 Case No. 04-13306-BB Act, by its terms, does not authorize statutory liquidated damages. Chao, 124 the Chao Court recognized that the legislative history of the Privacy reflected that Congress "cut out the very language in the bill that would have any presumed damages." Id. at 1209-10. The Supreme Court determined of presumed damages from the final bill version of the Privacy Act a "deliberate elimination of any possibility of imputing harm and awarding damages." Id. The Court found that the deletion of this language "precludes" any hope of a sound interpretation of entitlement to recovery without actual damages. Id. as the Solicitor General pointed out in his Brief to the Supreme "draft bills that expressly provided for liquidated damages and did `to recovery' were considered and rejected in both Senate." See for the Respondent Secretary of Labor at 40, Doe v. 124 S. Ct. 2004) (No. 02-1377)[DE #44, Tab 1 at 40] available at http://www.abanet.org/publiced/preview/briefs/dec03.html#doe "SG Brief'). The "persons entitled to recovery," was obviously included by Congress in the Act as a means to limit potential damages that could be awarded against the order for this Court to understand the profound differences between the 33 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Privacy Act and the DPPA, the Court should begin with a comparison and analysis of the language of the two statutes. This analysis will make clear the conclusion that the two statutes are completely different, and that the District Court’s reliance on Chao was misplaced. The Privacy Act provides that, once liability is shown, the government is liable for “actual damages sustained by the individual..., but in no case shall a person entitled to recovery receive less than... $1000.” 5 U.S.C. §522a(g)(4)(A). Justice Souter, writing for the majority, based his holding – that only persons who are “entitled to recovery” by showing actual damages are entitled to the $1000 minimum – on a strict dissection of the statute. The Privacy Act, according to Justice Souter, limits the $1,000 minimum to persons “entitled to recovery,” and persons “entitled to recovery” are, in turn, limited to persons who first demonstrate actual damages: [T]he Government’s position is supported by a straightforward textual analysis. When the statute gets to the point of guaranteeing the $1,000 minimum, it not only has confined any eligibility to victims of adverse effects caused by intentional or willful actions, but has provided expressly for liability to such victims for “actual damages sustained.” It has made specific provision, in other words, for what a victim within the limited class may recover. When the very next clause of the sentence containing the explicit provision guarantees $1,000 to a “person entitled to recovery,” the simplest reading of that phrase looks back to the immediately preceding provision for recovering actual damages, which is also the Act’s sole provision for recovering anything (as distinct from equitable relief). With such an obvious referent for “person entitled to recovery” in the plaintiff who sustains “actual damages,” Doe’s theory is immediately 34 Case No. 04-13306-BB Act and the DPPA, the Court should begin with a comparison and analysis of statutes. This analysis will make clear the conclusion that the statutes are completely different, and that the District Court's reliance on Chao Act provides that, once liability is shown, the government is liable "actual damages sustained by the individual..., but in no case shall a person to recovery receive less than... $1000." S.§522a(g)(4)(A). Justice writing for the majority, based his holding -that only persons who are "to recovery" by showing actual damages are entitled to the $1000 minimum -on a strict dissection of the statute. The Privacy Act, according to Justice Souter, the $1,000 minimum to persons "entitled to recovery," and persons "entitled recovery" are, in turn, limited to persons who first demonstrate actual damages: he Government's position is supported by a straightforward analysis. When the statute gets to the point of the $1,000 minimum, it not only has confned any to victims of adverse effects caused by intentional or actions, but has provided expressly for liability to such for "actual damages sustained." It has made specific in other words, for what a victim within the limited recover. When the very next clause of the sentence the explicit provision guarantees $1,000 to a "person to recovery," the simplest reading of that phrase looks preceding provision for recovering actual is also the Act's sole provision for recovering as from equitable relief). Wth such an obvious for "person entitled to recovery" in the plaintif who "actual damages," Doe's theory is immediately 34 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB questionable in ignoring the “actual damages” language so directly at hand.... Id. at 1208. Importantly, Justice Souter pointed out that plaintiff Doe’s efforts to read the statute as providing aggrieved parties actual damages “but in no case ... less than the sum of $1000,” is overly broad because it “leaves the reference to ‘entitlement to recovery’ with no job to do.” Id. at 1210. Thus, it is clear that the “person entitled to recovery” limitation that immediately follows the actual damages clause formed the primary basis of the majority opinion. Thus, there simply can be no dispute that the Chao holding rests squarely on the shoulders of the phrase “entitled to recovery.” Id. at 1208-09. If that “limiting phrase” were not in the Privacy Act, the holding would be different. That limiting phrase does not appear in the DPPA. Additionally, the differences accorded to lawsuits against the government and those against private parties creates another important distinction between the DPPA and the Privacy Act, and, therefore, between this case and Chao. At the oral argument of Chao, the Court recognized that: “Congress did not want to bankrupt the Treasury, destroying Medicare, social security and every other programs [sic] we give $1 trillion in damages and people…” Chao Tr. at 32-33; (in which the Solicitor General recognizes that there are several other privacy based statutes with provisions similar to the Privacy Act but that “most of these don’t apply to suits against the United 35 Case No. 04-13306-BB in ignoring the "actual damages" language so at hand... 1208. Justice Souter pointed out that plaintiff Doe's efforts to read the aggrieved parties actual damages "but in no case ... less than the $1000, is overly broad because it "leaves the reference to `entitlement to recovery' with no job to do." Id. at 1210. Thus, it is clear that the "person entitled to recovery" limitation that immediately follows the actual damages clause formed the basis of the majority opinion. Thus, there simply can be no dispute that the rests squarely on the shoulders of the phrase "entitled to recovery." Id. If that "limiting phrase" were not in the Privacy Act, the holding would That limiting phrase does not appear in the DPPA. the differences accorded to lawsuits against the government and parties creates another important distinction between the DPPA and, therefore, between this case and Chao. At the oral argument recognized that: "Congress did not want to bankrupt the Treasury, social security and every other programs [sic] we give $1 trillion damages and people..." Chao Tr. at 32-33; which the Solicitor General similar to Privacy Act but that "most of these don't apply to suits against the United 35 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB States…”); Chao Tr. at 46; (recognizing that Congress crafted different language in the Privacy Act than in other federal privacy statutes because “it may be that most of these statutes are not dealing with suits against the United States, and Congress may be more protective of the public fisc.”). Chao Tr. at 47. In fact, Justice Souter actually makes reference to other statutes that are very similar to the DPPA, such as the Tax Reform Act of 1976, 26 U.S.C. §6110, and the ECPA. Chao, 124 S. Ct. at 1212. Justice Souter found that “as to §1201(i)(2)(A) of the Tax Reform Act, the text is too far different from the language of the Privacy Act to serve as any sound basis for analogy; it does not include the critical limiting phrase ‘entitled to recovery.”7 Id. Justice Souter’s analysis would equally apply to the DPPA. Simply put, Justice Souter himself articulates the inapplicability of Chao to the instant action. Id. Chao cannot be extrapolated to create new federal legislation that would overrule all liquidated damages remedies of the Privacy Statutes. See, e.g., Sherman v. United States, 356 U.S. 369, 373, 78 S. Ct. 819, 822-23, 2 L. Ed. 2d 848 (1958) (The Supreme Court does not ordinarily decide issues not presented by the parties); Tyler v. Judges of the Court of Registration, 179 U.S. 405, 408-09, 21 S. Ct. 206, 208, 45 L. Ed. 252 (1900) (The Court is not empowered to decide abstract propositions, or to declare, for the government of future cases, principles or rules of 7 The particular Tax Reform Act provision that Justice Souter refers to reads: “actual damages sustained by the person but in no case shall a person be entitled to 36 Case No. 04-13306-BB States..."); Chao Tr. at 46; (recognizing that Congress crafted different language in Act than in other federal privacy statutes because "it may be that most of with suits against the United States, and Congress may of the public fsc."). Chao Tr. at 47. Justice Souter actually makes reference to other statutes that are very to the DPPA, such as the Tax Reform Act of 1976, 26 U.S.C. §6110, and the Chao, 124 S. Ct. at 1212. Justice Souter found that "as to § 1201(i)(2)(A) of Act, the text is too far different from the language of the Privacy Act does include the critical limiting phrase `to recovery."' Id. Justice Souter's analysis would equally apply to the put, Justice Souter himself articulates the inapplicability of Chao to the Id. Chao cannot be extrapolated to create new federal legislation that overrule all liquidated damages remedies of the Privacy Statutes. See, e.g., States, 356 U.S. 369, 373, 78 S. Ct. 819, 822-23, 2 L. Ed. 2d 848 (The Supreme Court does not ordinarily decide issues not presented by the Tyler v. Judges of the Court ofRegistration, 179 U.S. 405, 408-09, 21 S. Ct. 208, 45 L. Ed. 252 (1900) (The Court is not empowered to decide abstract or to declare, for the government of future cases, principles or rules of Tax Reform Act provision that Justice Souter refers to reads: "damages sustained by the person but in no case shall a person be entitled to 36 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB law which cannot affect the result as to the ruling in issue in the case before it). Even the Solicitor General of the United States recognized, in his Brief filed in Chao, that damages under the DPPA do not depend upon proof of actual damages. See S.G. Brief at 30-32, [DE #44, Tab 1, at 30-32]. Like the “far different” statutes referenced by Justice Souter, the DPPA provides a true liquidated damages remedy, because it does not include any “limiting phrase” like “a person entitled to recovery.” To the contrary, the DPPA provides relief to anyone whose protected information was obtained or used in violation of the DPPA by providing that the violator “shall be liable to the individual to whom the information pertains.” A contrary interpretation of Chao would turn the liability determining element “shall be liable” into “may be liable depending on whether the aggrieved party can prove damages.” Of course, such a tortured analysis of the statute would erroneously fail to give effect to the plain words Congress wrote. United States v. Menasche, 348 U.S. 528, 538-39, 75 S. Ct. 513, 519-20, 99 L. Ed. 615 (1955). Liability in this case should not depend on actual harm. Moreover, the DPPA provides that any aggrieved person – not just those that are “entitled to recovery” like in the Privacy Act – shall receive “not less than liquidated damages in the amount of $2500.” 18 U.S.C. §2724(b)(1)(2003). In fact, Justice Souter has already opined that you cannot analogize the Privacy Act with language akin to the DPPA. Chao, 124 S. receive less than the sum of $1,000”. 26 U.S.C. §6110(j)(2)(A). 37 Case No. 04-13306-BB cannot affect the result as to the ruling in issue in the case before it). Even General of the United States recognized, in his Brief filed in Chao, that DPPA do not depend upon proof of actual damages. See S.G. at 30-32, [DE #44, Tab 1, at 30-32]. the "far different" statutes referenced by Justice Souter, the DPPA a damages remedy, because it does not include any "limiting phrase" like "a person entitled to recovery." To the contrary, the DPPA provides to anyone whose protected information was obtained or used in violation of the by providing that the violator "shall be liable to the individual to whom the pertains." A contrary interpretation of Chao would turn the liability element "shall be liable" into "may be liable depending on whether the can damages." Of course, such a tortured analysis of the statute erroneously fail to give effect to the plain words Congress wrote. United States U.S. 528, 538-39, 75 S. Ct. 513, 519-20, 99 L. Ed. 615 (1955). in this case should not depend on actual harm. Moreover, the DPPA that any aggrieved person -not just those that are "entitled to recovery" like Act -shall receive "not less than liquidated damages in the amount of 2500." 18 U.S.C. §2724(b)(1)(2003). In fact, Justice Souter has already opined that the Privacy Act with language akin to the DPPA. Chao, 124 S. the sum of $1,000". S.C. §6110(j)(2)(A). 37 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Ct. at 1212. Finally, as Justice Ginsburg observed in her dissenting opinion in Chao, “the remedy of minimum statutory damages is a fairly common feature of federal legislation.” Id. at 1220. Although the inclusion of the limiting phrase “a person entitled to recovery” following a clause tying liability to actual damages made the issue a close call in Chao (indeed, it led to a majority opinion by Justice Souter and dissents by Justices Ginsburg and Breyer), there is no such limiting phrase in the DPPA, and the issue here, accordingly, is not a close call. Persons whose information is obtained from the DMV without their consent are entitled to a minimum award of $2,500 under the clear wording of the DPPA. B. The District Court’s Decision Ignores the DPPA’s Legislative History Kehoe does not believe that the language of the DPPA is ambiguous. However, Kehoe recognizes that the District Court’s interpretation of the DPPA, advanced by Fidelity, certainly differs from Kehoe’s analysis. Thus, under circumstances where parties are advancing differing interpretations of the meaning of a statute, it may be appropriate for this Court to analyze the DPPA’s legislative history. Garcia v. United States, 469 U.S. 70, 76 n.3, 105 S. Ct. 479, 483, 83 L. Ed. 2d 472 (1984) (‘“Resort to legislative history is only justified where the face of the Act is inescapably ambiguous....”’). The reason for the DPPA’s enactment makes it unmistakably clear that if 38 Case No. 04-13306-BB as Justice Ginsburg observed in her dissenting opinion in the remedy of minimum statutory damages is a fairly common feature of legislation." Id. at 1220. Although the inclusion of the limiting phrase "a to recovery" following a clause tying liability to actual damages made in Chao (indeed, it led to a majority opinion by Justice Souter and Breyer), there is no such limiting phrase in the and is not a close call. Persons whose information from the DMV without their consent are entitled to a minimum award of the clear wording of the DPPA. District Court's Decision Ignores the DPPA's Legislative is However, that the District Court's interpretation of the DPPA, advanced by certainly differs from Kehoe's analysis. Thus, under circumstances where differing interpretations of the meaning of a statute, it may be this Court to analyze the DPPA's legislative history. Garcia v. United 3, 105 S. Ct. 479, 483, 83 L. Ed. 2d 472 (1984) ("`Resort to history is only justifed where the face of the Act is inescapably ambiguous... ."'). reason for the DPPA's enactment makes it unmistakably clear that if 38 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Congress had intended that a private cause of action under the DPPA be limited to those individuals who suffered actual damages, it would not have needed to establish a minimum statutory recovery for those persons “entitled to recovery”. This Court should think for a moment about the consequences that an affirmance of the District Court’s opinion will have. Any Florida resident can now obtain DPPA protected information and, unless a prospective Plaintiff can show “actual damages,” there is nothing anyone can do about it. The problem is that by the time the victim suffers actual damages, it is too late and the DPPA’s deterrent effects have been lost. III. The District Court Erred When It Entered Summary Final Judgment for Defendant Without Considering Plaintiff’s Prayer for Both Class Certification and Injunctive Relief Finally, in its Opinion, the District Court failed to address Kehoe’s request for injunctive relief. Kehoe, on behalf of himself, and the class, sought the destruction of all information obtained by Fidelity from the FDHSMV, as well as all other applicable equitable relief, including the cessation of Fidelity’s practice of obtaining such personal information from FDHSMV, in violation of the Drivers Privacy Protection Act. 18 U.S.C. §2721 et. seq. (“DPPA”). Kehoe’s prayer for relief in the complaint (Complaint, [DE # 1) ], included, inter alia, the following: WHEREFORE, Plaintiff demands judgment on his behalf and on behalf of the other members of the Class to the following effect: … f. such other relief as the Court deems appropriate. 39 Case No. 04-13306-BB that a private cause of action under the DPPA be limited to who suffered actual damages, it would not have needed to establish a statutory recovery for those persons "entitled to recovery". This Court for a moment about the consequences that an affirmance of the District Court's opinion will have. Any Florida resident can now obtain DPPA protected and, unless a prospective Plaintiff can show "actual damages," there is anyone can do about it. The problem is that by the time the victim suffers is too late and the DPPA's deterrent effects have been lost. District Court Erred When It Entered Summary Final Judgment Defendant Without Considering Plaintiff's Prayer for Both Class and Injunctive Relief in its Opinion, the District Court failed to address Kehoe's request for relief. Kehoe, on behalf of himself, and the class, sought the destruction of obtained by Fidelity from the FDHSMV, as well as all other applicable relief, including the cessation of Fidelity's practice of obtaining such from FDHSMV, in violation of the Drivers Privacy Protection 18 U.S.C. §2721 et. seq. ("DPPA"). Kehoe's prayer for relief in the complaint [DE # 1) ], included, inter alia, the following: Plaintiff demands judgment on his behalf and on the other members of the Class to the following effect: as the Court deems appropriate. 39 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Kehoe’s prayer for relief tracks the language of the DPPA, which provides: (b) Remedies. – The court may award – … (4) such other preliminary and equitable relief as the court determines to be appropriate. 18 U.S.C. § 2724(b). Moreover, Kehoe also requested certification of the class pursuant to Fed. R. Civ. P. 23(b)(2), and requested equitable relief thereunder. Specifically, Kehoe asserted: EQUITABLE RELIEF IS APPROPRIATE TO ALL CLASS MEMBERS Plaintiff has alleged in his Complaint that Defendant has engaged in acts and practices in violation of the DPPA by knowingly obtaining, disclosing, or using personal information pertaining to the Plaintiff and each class member. If Plaintiff’s allegations are proven, equitable relief would be appropriate under 18 U.S.C. § 2724(4) for the entire class as against the Defendants. This renders certification of a "(b)(2)" class appropriate in this case. Fed. R. Civ. P. 23(b)(2). (Motion for Class Certification at 17) [DE#27]. In addition, Fidelity acknowledged that it had ceased the unlawful practice of obtaining personal information of Florida Title Registrants from FDHSMV, for advertising purposes, without their prior express consent, as required by the DPPA. (Deposition of Jaqueline Larish (“Larish Dep”), at 25-28) [DE#73]. Kehoe’s claim for injunctive relief in both the complaint and the motion for class certification as well 40 Case No. 04-13306-BB Kehoe's prayer for relief tracks the language of the DPPA, which provides: -The court may award -preliminary and equitable relief as the court be appropriate. 2724(b). Kehoe also requested certifcation of the class pursuant to Fed. R. P. and requested equitable relief thereunder. Specifcally, Kehoe RELIEF IS APPROPRIATE TO ALL MEMBERS has alleged in his Complaint that Defendant has engaged acts and practices in violation of the DPPA by knowingly disclosing, or using personal information pertaining to and each class member. If Plaintiff's allegations are equitable relief would be appropriate under 18 U.S.C. § of a "(b)(2)" class appropriate in this case. Fed. R. P. 23(b)(2). for Class Certification at 17) [DE#27]. Fidelity acknowledged that it had ceased the unlawful practice of personal information of Florida Title Registrants from FDHSMV, for purposes, without their prior express consent, as required by the DPPA. of Jaqueline Larish ("Larish Dep"), at 25-28) [DE#73]. Kehoe's claim relief in both the complaint and the motion for class certifcation as well 40 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB as Fidelity’s acknowledgement that it had discontinued the practice reflects that this matter was pending before the District Court when it entered its Final Judgment. The District Court therefore committed error when it failed to address the injunctive relief sought by Kehoe in its Order. This Court has found that language similar to that found in Kehoe’s complaint and the motion for class certification is broad enough to include injunctive relief prohibiting Fidelity from obtaining personal information of Florida Title Registrants from FDHSMV, for advertising purposes, without their prior express consent, as required by the DPPA. Covad Communs. Co. v. BellSouth Corp., 314 F.3d 1282, 1285 n. 13 (11th Cir. 2002). In Covad Communs., this Court held that: In the “prayer for relief” at the end of the complaint, Covad asks for treble damages on its antitrust claims, … and “such other and further relief as the Court deems just and proper.” One must assume that the latter relief would include injunctive orders necessary to ensure BellSouth’s compliance with the antitrust laws, the 1996 Act, and the parties’ interconnection agreement. Covad Cummuns., 314 F. 3d at 1285 n.13. Since the District Court neglected to address the injunctive relief sought by Kehoe, the District Court does not have a basis to either enter a final judgment, or to render the class certification moot. (Order) [DE#108]. In Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000), the Supreme Court held that neither a permit holder’s substantial compliance with its 41 Case No. 04-13306-BB Fidelity's acknowledgement that it had discontinued the practice refects that this before the District Court when it entered its Final Judgment. The Court therefore committed error when it failed to address the injunctive relief in its Order. has found that language similar to that found in Kehoe's complaint motion for class certification is broad enough to include injunctive relief Fidelity from obtaining personal information of Florida Title Registrants FDHSMV, for advertising purposes, without their prior express consent, as by the DPPA. Covad Communs. Co. v. BellSouth Corp., 314 F.3d 1282, 11th Cir. 2002). In Covad Communs., this Court held that: "prayer for relief' at the end of the complaint, Covad asks damages on its antitrust claims, ... and "such other and relief as the Court deems just and proper." One must that the latter relief would include injunctive orders ensure BellSouth's compliance with the antitrust Act, and the parties' interconnection agreement. 314 F. 3d at 1285 n.13. District Court neglected to address the injunctive relief sought by Court does not have a basis to either enter a fnal judgment, or to certifcation moot. (Order) [DE#108]. In Friends of the Earth, Inc. v. Envtl. Servs., 528 U.S. 167, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000), the held that neither a permit holder's substantial compliance with its 41 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB permit nor its subsequent shutdown of the hazardous waste incinerator facility from which it discharged pollutants rendered moot environmental groups’ citizen suit, under Clean Water Act, absent a clear showing that the violations could not reasonably be expected to recur. 528 U.S. at 189. Specifically, the Supreme Court held: The only conceivable basis for a finding of mootness in this case is Laidlaw’s voluntary conduct--either its achievement by August 1992 of substantial compliance with its NPDES permit or its more recent shutdown of the Roebuck facility. It is well settled that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S. Ct. 1070, 71 L. Ed. 2d 152 (1983). “[I]f it did, the courts would be compelled to leave ‘[t]he defendant ... free to return to his old ways.’” Id. at 289, n. 10, 102 S. Ct. 1070 (citing United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 97 L. Ed. 1303 (1953)). In accordance with this principle, the standard we have announced for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968). The “heavy burden of persua[ding]” the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. Id. Moreover, Fidelity acknowledged that it had ceased the unlawful practice of obtaining personal information of Florida title registrants from FDHSMV, for advertising purposes, without their prior express consent, as required by the DPPA. 42 Case No. 04-13306-BB nor its subsequent shutdown of the hazardous waste incinerator facility from it discharged pollutants rendered moot environmental groups' citizen suit, Clean Water Act, absent a clear showing that the violations could not recur. S. at 189. Specifcally, the Supreme conceivable basis for a finding of mootness in this case Laidlaw's voluntary conduct--either its achievement by August with its NPDES permit or its more of the Roebuck facility. It is well settled that "a defendant's voluntary cessation of a challenged practice does not of its power to determine the legality of the practice." City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 102 S. Ct. 1070, 71 L. Ed. 2d 152 (1983). "[I]f it did, be compelled to leave `[t]he defendant ... free to his old ways."' Id. at 289, n. 10, 102 S. Ct. 1070 (citing WT Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, Ed. 1303 (1953)). In accordance with this principle, the for determining whether a case has by the defendant's voluntary conduct is stringent: "case might become moot if subsequent events made it clear that the allegedly wrongful behavior could not be expected to recur." United States v. Concentrated Ass'n, 393 U.S. 199, 203, 89 S. Ct. 361, 21 L. 1968). The "heavy burden of persua[ding]" the court cannot reasonably be expected to start with the party asserting mootness. Fidelity acknowledged that it had ceased the unlawful practice personal information of Florida title registrants from FDHSMV, for purposes, without their prior express consent, as required by the DPPA. 42 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB See Deposition of Jaqueline Larish, D.E. # 73, pp. 25-28. Kehoe’s claim for injunctive relief in both the complaint and the motion for class certification as well as Fidelity’s acknowledgement that it had discontinued the practice reflects that this matter was pending before the District Court when it entered its Final Judgment. The District Court therefore committed error when it failed to address the injunctive relief sought by Kehoe in its Final Order. This Court has found that language similar to that found in Kehoe’s complaint and the motion for class certification is broad enough to include injunctive relief prohibiting Fidelity from obtaining personal information of Florida Title Registrants from FDHSMV, for advertising purposes, without their prior express consent, as required by the DPPA. Covad Communs. Co., 314 F. 3d at 1285. Fidelity may have stated that it had ceased the contested practice; however, Fidelity never raised this issue in its Motion for Summary Judgment, let alone met its “heavy burden” to show that it would not engage in this practice in the future. The District Court should not have dismissed Kehoe’s Motion for Class Certification merely because Fidelity has ceased its practice of unlawfully obtaining protected information on Florida title registrants from the FDHSMV. Courts have certified classes under Fed. R. Civ. P. 23(b)(2) where the defendants have taken steps following the filing of a lawsuit that attempt to effectively moot the requested injunctive relief. Friends of the Earth, Inc., 528 U.S. at 189; Buchanan v. Consol. 43 Case No. 04-13306-BB of Jaqueline Larish, D.E. 73, pp. Kehoe's claim for relief in both the complaint and the motion for class certification as well as Fidelity's acknowledgement that it had discontinued the practice refects that this before the District Court when it entered its Final Judgment. The Court therefore committed error when it failed to address the injunctive relief in its Final Order. has found that language similar to that found in Kehoe's complaint motion for class certification is broad enough to include injunctive relief Fidelity from obtaining personal information of Florida Title Registrants FDHSMV, for advertising purposes, without their prior express consent, as by the DPPA. Covad Communs. Co., 314 F. 3d at 1285. Fidelity may have it had ceased the contested practice; however, Fidelity never raised this for Summary Judgment, let alone met its "heavy burden" to show would not engage in this practice in the future. District Court should not have dismissed Kehoe's Motion for Class merely because Fidelity has ceased its practice of unlawfully obtaining information on Florida title registrants from the FDHSMV. Courts have classes Fed. R. Civ. P. 23(b)(2) where the defendants have taken steps the fling of a lawsuit that attempt to effectively moot the requested relief. Friends of the Earth, Inc., 528 U.S. at 189; Buchanan v. Consol. 43 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Stores Corp., 217 F.R.D. 178, 189 (D. Md. 2003)(African-American customers’ request for class injunction prohibiting owner of retail stores from accepting checks was not rendered moot by owner’s subsequent voluntary conduct of abolishing disputed policy after action was instituted); Arnold v. United Artists Theater Circuit, 158 F.R.D. 439, 456 (N.D. Cal. 1994)(Subsequent remedy of non-compliant design features in movie theaters which did render claim brought under ADA moot); Mack v. Suffolk County, 191 F.R.D. 16, 21 (D. Mass. 2000)(Action alleging county policy of subjecting all female pre-arraignment detainees to strip searches without individualized reasonable suspicion was not rendered moot merely because county amended policy to require individualized reasonable suspicion). Accordingly, the District Court erred in entering the final judgment because it did not address all the claims asserted in the case. Indiana H. B. R. Co. v. American Cyanamid Co., 860 F.2d 1441, 1446 (7th Cir. 1988)(District court order entering summary judgment against defendant on a strict liability count was not a “final judgment” where claim was only partially adjudicated because negligence count remained unresolved); Acme Painting Ink Co. v. Menard, Inc., 891 F. Supp. 1289, 1304 (E.D. Wis. 1995)(District court could not enter final judgment in favor of building supply company after granting it summary judgment on CERCLA liability claim, in light of closely related unadjudicated claim under Resource Conservation 44 Case No. 04-13306-BB Corp., 217 F.R.D. D. Md. 2003)(African-American customers' class injunction prohibiting owner of retail stores from accepting checks not rendered moot by owner's subsequent voluntary conduct of abolishing after action was instituted); Arnold v. United Artists Theater Circuit, 439, 456 (N.D. Cal. 1994)(Subsequent remedy of non-compliant design theaters which did render claim brought under ADA moot); Mack v. Sufolk County, 191 F.R.D. 16, 21 (D. Mass. 2000)(Action alleging county policy of all female pre-arraignment detainees to strip searches without reasonable suspicion was not rendered moot merely because county to require individualized reasonable suspicion). the District Court erred in entering the fnal judgment because it address all the claims asserted in the case. Indiana H B. R. Co. v. American Co., 860 F.2d 1441, 1446 (7th Cir. 1988)(District court order entering judgment against defendant on a strict liability count was not a "fnal judgment" where claim was only partially adjudicated because negligence count unresolved); Acme Painting Ink Co. v. Menard, Inc., 891 F. Supp. 1289, E.D. Wis. court could not enter final judgment in favor of supply company after granting it summary judgment on CERCLA liability in light of closely related unadjudicated claim under Resource Conservation 44 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB and Recovery Act of 1976, 42 U.S.C. §6901, et seq. (“RCRA”) also involving company’s waste disposal activities). CONCLUSION For the foregoing reasons, this Court should reverse the Summary Final Judgment entered by the District Court. 45 Case No. 04-13306-BB Recovery Act of 1976, 42 U.S.C. et seq. ("RCRA") also involving company's waste disposal activities). the foregoing reasons, this Court should reverse the Summary Final by the District Court. 45 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB Dated: October ___, 2004 Respectfully submitted, PATHMAN LEWIS LLP One South Biscayne Tower 2 S. Biscayne Blvd. Miami, Florida 33131 Telephone: (305) 379-2425 Facsimile: (305) 379-2420 By: ______________________ ROGER A. SLADE Fla. Bar No.: 0041319 MARCC.PUGLIESE Fla. Bar No.: 0086169 Paul Geller, Esq. Fla. Bar No.: 984795 Stuart A. Davidson, Esq. Fla. Bar No.: 0084824 LERACH, COUGHLIN, STOIA GELLER RUDMAN & ROBBINS LLP 197 South Federal Highway, Suite 200 Boca Raton, FL 33432 Telephone: (561) 750-3000 Facsimile: (561) 750-3364 Attorneys for Plaintiff/Appellant James Kehoe 46 Case No. 04-13306-BB , submitted, LEWIS LLP Tower Blvd. Florida 33131 (305) 379-2425 (305) 379-2420 A. SLADE No.: MARC C. PUGLIESE No.: 0086169 Esq. No.: Davidson, Esq. No.: COUGHLIN, STOIA GELLER & ROBBINS LLP Highway, Suite 200 FL 33432 (561) 750-3000 3364 for Plaintiff/Appellant James Kehoe 46 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)(B) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 9,517 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 97 SR-2 in Times New Roman 14. ________________________________ MARC C. PUGLIESE One of the Attorneys for Plaintiff/Appellant James Kehoe 47 Case No. 04-13306-BB OF COMPLIANCE WITH FRAP 32(a)(7)(B) complies with the type-volume limitation of Fed. R. App. P. B) because this brief contains 9,517 words, excluding the parts of the brief Fed. R. App. P. 32(a)(7)(B)(iii). brief complies with the typeface requirements of Fed. R. App. P. requirements of Fed. R. App. P. 32(a)(6) because this brief prepared in proportionally spaced typeface using Microsoft Word 97 SR-2 New Roman 14. C. PUGLIESE Attorneys for Plaintiff/Appellant 47 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6Case No. 04-13306-BB CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original and six copies of the “Initial Brief of Appellant James Kehoe” were dispatched for filing via Federal Express Overnight Delivery to L. Louis Mrachek, Esq. and Roy Fitzgerald, Esq.; Page, Mrachek, Fitzgerald & Rose, P.A., 505 S. Flagler Drive, Suite 600, West Palm Beach, Florida 33401 on this ______ day of October, 2004. ___________________________ MARCC.PUGLIESE One of the Attorneys for Plaintiff/Appellant James Kehoe r:\kehoe james\kehoe james -fidelity federal\pldg\gelllerrevisionsii.doc 48 Case No. 04-13306-BB OF SERVICE CERTIFY that the original and six copies of the "Initial Brief of James Kehoe" were dispatched for filing via Federal Express Overnight to L. Louis Mrachek, Esq. and Roy Fitzgerald, Esq.; Page, Mrachek, & Rose, P.A., 505 S. Flagler Drive, Suite 600, West Palm Beach, Florida October, 2004. MARC C. PUGLIESE the Attorneys for Plaintiff/Appellant james -fidelity federal\pldg\48 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=75eee5b2-0192-42d3-8c57-5811c2d6a4e6

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Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.

Your Rights

Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.

Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.

Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.

Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

Improve the user experience on our Website and Services;

Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;

Track anonymous site usage; and

Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

"Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).

"Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.

"Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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